572

ARMS ACT, 1878 AND ARMS RULES, 1924

Citation: 40 DLR (AD) 170,40 DLR 251, 40 (AD) 170,44 DLR 110,41 DLR 524, 4I DLR 524, 40 DLR 493,44 DLR 159,43 DLR 150

Case Year: 1878

Subject: ARMS

Delivery Date: 2018-01-08

Arms Act, 1878
 
Sections 16 & 18—
Appellant was neither given any notice of enquiry nor was he given any hearing before cancellation of arms—Enquiry undertaken on a sprawling private complaint made by the local upazila Chairman.
No emergency or any other compelling situation  preventing  giving of notice of enquiry lo the appellant—Nothing on record to show that any specific case was started against the appellant involving alleged misuse of revolver —Inquisitorial nature of enquiry aggravating the degree of unfairness—Principles of natural justice to be observed in proceedings affecting "the person or property or other right of parties concerned "—court adds a rider to the observance of the principle of natural justice that so far as exercise of power under section 18 of the Arms Act is concerned, the absence of a prior notice or hearing may not always invalidate the order passed thereunder if the security of the public peace is involved.
Sk. Ali Ahmed Vs. Secretary, Home Affairs 40 DLR (AD) 170.
 
Sections 16(1) and 19(1)—
The  Sub-Divisional Magistrate, Shariatpur had no jurisdiction whatsoever to cancel the license s of the guns in question under section 18(a) of the Arms Act or under any provision of the Arms Rules of 1924. As the license s of the guns in question were not cancelled by any legally competent authority such as the District Magistrate or by any authorised officer to whom he is subordinate as required under the provisions of Arms Act or the Arms rules, cancellation thereof by the SDO is illegal. Conviction under sections 16(1) and 19(1) of the Arms Act read with section 26 of the Special Powers Act is not sustainable in law.
Anawar  Hossains. Vs State  40 DLR 251.
 
Section 18—
Cancellation and suspension of license for arms—The necessity of recording reasons by the appropriate authority in writing for the cancellation of the license to be emphasized as a general rule—If the appropriate authority chooses not to make its order a speaking one and merely relies on the materials on record, its order stands a greater risk of being struck down. 
Sk. Ali Ahmed Vs. Secretary Home Affairs 40 (AD) 170.
 
Section 18—
Orders passed by the District Magistrate cancelling license s of guns of the petitioners without giving them any notice and opportunity of being heard and giving no reason for cancellation are illegal being violative of the principal of natural justice.
Rezaul Karim (Md) Vs. Ministry of Home Affairs 44 DLR 110.
 
Section 19A—
Uncorroborated testimony of an accomplice cannot be basis of conviction of an accused.
Kazi ibrahim Vs State 41 DLR 524.
 
Section 19A—
A person cannot be convicted on surmises and conjectures and from any analogical deduction.
Kazi Ibrahim VS. State 4I DLR 524.
 
Section 19(f)—
Appellants leading the police to place of occurrence and recovery of arms—Appellants cannot be held guilty of the charge of unauthorised possession of arms under section 19(f) of the Arms Act.
Abdul Khaleque Vs. State 40 DLR 493.
 
Section 19(f)—
Recovery of arms—culpability—mere knowledge of the accused that the arms were lying at the spot pointed out by him in the absence of evidence that he himself kept the same there or that he had exclusive possession over it, he cannot be made liable under section 19(f).
Abul Hashem Master Vs. State 44 DLR 159.
 
Arms Rules, 1924
 
Column 2 of the Table Schedule I as amended by notification No 896—Section II dated Dhaka the l9th November l973—The decision in this case having depended on findings of facts as to whether the seized arm were recovered from the possession of the petitioner, whether the same came within the exception provided for and covered by amnesty, if any, declared by the government, the extraordinary power to prevent the abuse of process of the court is not required to be exercised.
Hossain Mohammad Ershad Vs. State 43 DLR 150
573

Abandoned Buildings (Supplementary provisions) Ordinance LIV of 1985

Citation: 16 BLC (AD) 22, 17 BLC (AD) 196, 15 BLC (AD) 179, 13 BLC (AD) 140, 11 BLC (AD) 218, 13 BLC 247, 13 BLC 464, 14 BLC (AD)19, 15 BLC (AD) 200, 12 BLC 423

Case Year: 1985

Subject: Abandoned Buildings (Supplementary provisions)

Delivery Date: 2018-05-29

Abandoned Buildings (Supplementary provisions)

Ordinance LIV of 1985

 

Sections 2(a), 5 & 6

 

The expression 'building' has been defined in section 2(a) of the Ordinance, which means "any residential or other building or structure of any kind in an urban area and includes the land adjunct thereto, and the Court yard, tank, place of worship and private burial or cremation ground appertaining to such building". From the above definition there is no gainsaying that building includes any structure in the urban area and any land adjunct thereto. There is no dispute that there are structures on the disputed land as has been admitted by the writ petitioner in the writ petition. In view of this admitted position, there is no merit in the contention of the learned Advocate for the respondent. Over and above, admittedly the property has not been enlisted in the abandoned property list in accordance with section 5 of the Ordinance.

 

Jahangir Alam (Md) vs Md. Shamsur Rahman Sarder 16 BLC (AD) 22.

 

Section 3

 

Section 3 of the Ordinance provides that the provisions of Ordinance shall have effect notwithstanding anything inconsistent herewith contained in any other law for the time being in force. The provisions of the Ordinance shall have overriding effect over the provisions of the Bangladesh Abandoned Property Order, 1972.

 

Government of the People's Republic of Bangladesh vs Orex Network Ltd 17 BLC (AD) 196.

 

Section 3(2)

 

The Settlement Court correctly applied the provision of law i.e. Article 2 of the PO No.16 of 1972 as there was absolutely no iota of evidence or material produced by the petitioner to show that Abdur Rahman, the alleged vendor of the respondent was present in Bangladesh or his whereabouts were known on 28-2-1972 and, as such, the alleged kabala of the respondent dated 24-4-1974 was by a fictitious non­existent Abdur Rahman by impersonation.

 

Bangladesh vs Mohiuddin 15 BLC (AD) 179.

 

Section 5(l)(a)

 

Admittedly the writ-petitioner took lease of the case property as a DN holder of the Government in 1975. To put it differently, the Government has been possessing the case property through its allottee. As the Government has been in possession of the case property through the writ-petitioner, the Government did not take over possession thereof from its own allottee before enlistment thereof in the 'Ka' list of abandoned building published in the Bangla­desh Gazette on 23-9-1986. In such a situation the submission is that the Government must have taken over the possession of the case property before its inclusion in the 'Ka' list of abandoned building falls to the ground.

 

Marziana Khatun vs Bangladesh 13 BLC (AD) 140.

 

Sections 5(2) and 7(1)

 

The petitioner did not lead any evidence to substantiate his contention as to non service of notice since it is not seen from the judgment of the Court of Settlement that any such contention was raised and the respondent made attempt to establish his claim of non-service of notice in listing the property as abandoned property. It may be mentioned because of the provision of sections 5(2) and 7(1) of the Ordinance No. 54 of 1985 whatever facts are asserted by the petitioner before the Court of Settlement in support of his claim to the property listed as abandoned, it is he who is to establish the same and thereupon onus to rebut the said fact is on the authority that listed the property as abandoned property. From the judgment of the Court of Settlement it is seen that the respondent miserably failed to establish before the said Court that the building in question is not an abandoned property.

 

Government of the People's Republic of Bangladesh vs Abdul Wahed Talukder 11 BLC (AD) 218.

 

Sections 5 and 11

 

The petitioners have proved their possession in the case property on the basis of the agreement for sale dated 27-12-1970. Their possession in the case property has been continuous, undis­turbed and uninterrupted since 27-12-1970 as the agents of the original owner Abdul Kaiyum. Furthermore, the decree of the Civil Court in favour of the writ petitioners was obtained before the promulgation of the Ordinance No. 54 of 1985. On top of that, the Government did not take over the possession of the case property at least before its inclu­sion in the 'Ka' list of abandoned buildings prepared under the authority of the PO No. 16 of 1972 or the Ordinance No. 54 of 1985. Against this backdrop, there is no hesitation in holding that the petitioners have dischar­ged the onus of proving that the case pro­perty is not an abandoned property and the Government included the same in the 'Ka' list of abandoned buildings illegally. The petitioners have also proved their possession in the case property after 1986 and hence the enlistment of the case property in 'ka' list as abandoned property is illegad, without lawful authority and it is not an abandoned property.

 

Mahmuda Begum vs Court of Settlement 13 BLC 247.

 

Sections 5 and 12

 

Since the property has been released by the competent authority in due process of law the property remains with the petitioner on and from the date of release dated 16-5-1989; subsequent allot­ment and registered deed No. 713 dated 9-5-1990 in favour of added respondent No, 5 is void and without any lawful authority and without jurisdiction. The deed of transfer need not be declared as void by any Court of law; when any document of allotment or document of settlement or deed of transfer of any property made by the persons or authority having no valid, lawful authority or executed illegally or in connivance with others and violative of due process of law, such act or documents is null and void and nullity as an emphatic way of saying that an order is so clearly illegal that it is to be readily set-aside or such document or transaction is not to be recognised under the law.

 

Hosna Am Begum vs Bangladesh 13 BLC 464.

 

Sections 5 and 7

 

Even in the applica­tion filed under section 7 of the Ordinance 1985 there is no assertion that on 28-2-1972 Abdus Salam used to live in this country and occupy or manage the building and he did never leave the country and he used to live in such and such place and further, the date of his death was also not given and further, though the case of the petitioner is that he purchased the case property from the wife and minor children of Abdus Salam on 9-4-1973, no deed of agreement has been filed in support of the above claim and accordingly, the findings of the Court of Settlement that the petitioner acquired title and that the case property was illegally included in the list of abandoned buildings is not founded on evidence and therefore perverse.

 

Abu Taker vs Bangladesh 14 BLC (AD)19.

 

Sections 5(2) and 7

 

Admittedly the property has been listed as an abandoned property. Thus, the onus lies upon the appellant to rebut the presumption provided in subsection (2) of Section 5 that the same was not an abandoned property. No oral evidence has been adduced before the settlement Court to prove that on 28-2-1972 when President's Order No. 16 of 1972 was promulgated the original lessee, Rafi Ahmed Fidai had been present in Bangladesh or his whereabouts were known or that he did not cease to occupy, supervise or manage in person the house in question.

 

Ambia Khatun vs Bangladesh 15 BLC (AD) 200.

 

Section 10(5)

 

From the impugned judgment and order dated 29-5-89 it is clear that the Court of Settlement dismissed the case of the petitioner without making any decision as to the claim of the petitioner. So, evidently, this impugned judgment and order has not been given in accordance with law.

 

AH Akbar Ansari vs Chairman, Court of Settlement 12 BLC 423.

574

Acquisition and Requisition of Immovable Property Ordinance, 1982

Citation: 12 BLC 514, 13 BLC 39, 15 BLC (AD) 210, 16 BLC 794, 13 BLC 793, 13 BLC (AD) 31

Case Year: 1982

Subject: Acquisition and Requisition of Immovable Property

Delivery Date: 2018-05-29

Acquisition and Requisition of

Immovable Property Ordinance, 1982

 [II of 1982]

 

Section 3

 

The respondents are strong­ly denying that there is a mosque and graveyard on the petitioners' land. Whether there is any mosque or graveyard in the proceeding land is a disputed question of fact and such quention cannot be decided in writ jurisdiction. However, for strict compliance of the provisions of law that mosques and graveyards are to be excluded from the acquisition proceedings. If there is any mosque or graveyard on the petitioners' land, the same should be kept outside the acquisi­tion proceedings in accordance with the law.

 

Ameenah Ahmed vs Bangladesh 12 BLC 514.

 

Sections 3, 7, 11 and 12

 

Section 3 of the Acquisition and Requisition of Immov­able Property Ordinance, 1982 requires the service of notice in the prescribed manner at a convenient place, or near the property proposed to be acquired. There is no require­ment for service of notice personally on the petitioners claiming owner-ship of the land sought to be acquired. It is sufficient if it is served even near the proceedings land. Annexure-3 series in the affidavit-in-opposi-tion of the respondent No. 3 Additional Land Acquisition Officer, are copies of notices believed to be served upon the petitioners.

 

Ameenah Ahmed vs Bangladesh 12 BLC 514.

 

Sections 3, 4, 5, 6, 7, 12

 

On plain reading of sections 7 and 12 of the Ordinance, it appears that the provisions in respect of period of deposition of estimated amount is not mere directory but mandatory. As a result of such failing to deposit the estimated amount of the award of compensation within the statutory period by the respondent No. 4 to the respondent No. 2 the acquisition proceedings stands abated. Moreover, as per provisions of sections 12(2)(3) of the Ordi­nance, after such abatement the Deputy Commissioner is also liable to issue Gazette Notification to revoke all proceedings in respect of acquisition of any property at any time before the payment of compensation and he shall make an award determining the amount of compensation due for the damage suffered by the owner, in consequence of the notice or of any proceedings and the costs reasonably incurred by him in the prosecution of the proceedings relating to the property in question and shall pay compen­sation accordingly.

 

But in the instant case, the respondents failed to comply with the provisions of law and intention of the legislature and, as such, the continuation of the proceedings is illegal. Moreover, on careful consideration of the notice issued under section 3 of the Ordinance, it appears that the respondent No. 2 kept two alternative options for the proposed acquisition, which is absolutely barred under law. The law of acquisition gives the Deputy Commissioner the power to acquire property in the likelihood of two situations. First, if the property is needed. Or, if the property is likely to be needed, but while acquiring a property the Deputy Commissioner cannot keep both the alternatives in his pocket. He has to choose between the two. If he keeps both the options open, then he does not know whether the property is needed for immediate use or it is likely to be needed for some future use. The use of both these alternative expressions in the notice under section 3 is indicative of a lack of application of mind and the notice under section 3 is liable to be struck down on that ground as well.

 

Naznil Islamvs Bangladesh 13 BLC 39.

 

Sections 3 and 8(Ka)

 

The Arbitrator has fixed compensation at the rate of Tk. 15 lakh per acre taking the average of the sale price of the land in the vicinity and determined the compensation at a reasonable amount which is at least about 3 times less than the sale figure of 5 sale deeds in the vicinity of the acquired land by the petitioner together with compensation at the rate of 20% upon the value of the sale deeds and with additional compensation at the rate of 10% till the amount is paid or offered for paymenl.

 

Bangladesh Small & Cottage Industries Corporation vs Kazi Nazimuddin 15 BLC (AD) 210.

 

Sections 4(3)(b), 5(l)(a) and 15(1)

 

As the mandatory provisions of section 15(1) of the Ordinance were not complied with in entering into an agreement between the government and the Dhaka Reporters Unit Multi-purpose Co-operative Society Ltd before a notice under section 3 is published and hence the continuation of the process as evident in the report dated 31-1-2005 made under section 4(3)(b) culminating in the final order of acquisition issued under section 5(l)(a) of the Ordinance of 1982 are equally found to be without any legal basis and is of no legal effect and the entire attempted acquisition process is found to be void ab initio.

 

Habibullah (Md) vs Bangladesh 16 BLC 794.

 

Sections 7(4) and 28

 

In view of the Provisions of Ordinance No.II of 1982 the res­pondents cannot approach the Government to reconsider the assessment made earlier. An aggrieved party can seek relief before the Court of Law. Government cannot revise its assessment under the law. After expiry of statutory period of 60 days as provided by section 7(4) of the Ordinance the acquisition stood abated. The requiring body has no scope to go to the Arbitrator as per the provisions of section 28 of the Ordinance.

 

Elias Brothers (Pot) Limited vs Bangladeshis BLC 327.

 

Sections 12(1) and 17(2)

 

In the absence of evidence on the part of defendant-petitioner and defendant-opposite-party in respect of payment of compensation money of acquired suit property the proceeding in respect of acquisition stood abated under section 12(1) of The Ordinance of 1982. The suit property was not utilised by requiring body and remained unused and suit property under the provision of section 17(2) of The Ordinance of 1982 is required to be released by defendant-petitioner Rajdhani Unnayan Kartripakha as well as defendant-opposite-parly, Government of the People's Republic of Bangladesh and hand over to plaintiff-opposite-party who stepped into the shoes of owner vendor PW 2 on strength of a deed of conveyance dated 22-9-1994. Defendant-petitioner and defendant-opposite-party cannot keep suit property unused and unutilised for years and decades and cannot deny right of plaintiff-opposite-party to get suit property released.

 

Rajdhani Unnayan Kartripaklw vs Abdul Zakir 13 BLC 793.

 

Sections 32(3), 34 and 36

 

It is clear that the Arbitrator is a Civil Court for a limited purpose as enumerated in section 36 of the Ordinance and by no stretch of imagination it can be said that the Arbitrator is a Civil Court for all purposes, although in section 32(3) it has been provided that every award passed by the Arbitrator shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of section 2(2) and section 2(9) respectively of the Code of Civil Procedure. Section 114 of the Code of Civil Procedure provides for substantive right of review by the aggrieved party and Order XLVII, CPC provides for the procedure. The mere fact that in section 32(3) of the Ordinance it has been said that the award shall be deemed to be a decree and the state­ment of the grounds of such award a judg­ment within meaning of section 2(2) and section 2(9) respectively of the Code of Civil Procedure it will not confer any substantive right of review on the petitioner in the absence of any specific provisions for review in the Ordinance.

 

Atiqn Uah vs Bangladesh 13 BLC (AD) 31.

575

Administrative Tribunal Act, 1981

Citation: 17 BLC 355, 12 BLC 565, 12 BLC 734, 11 BLC (AD) 208, 17 BLC (AD) 10, 14 BLC 401, 16 BLC 588

Case Year: 1981

Subject: Administrative Tribunal

Delivery Date: 2018-05-29

Administrative Tribunal Act, 1981

[VII of 1981]

 

Section 4

 

The High Court Division can also entertain Writ Petition of a kind upon a view that the remedy before the Administrative Tribunal is not efficacious or that under the particular facts and circumstances of the cases the Writ Petition can be entertained, notwithstanding avail­ability of alternative remedy before the Tribunal.

 

Abdul Wahab Barker (Md) vs Bangladesh 17 BLC 355.

 

Section 4

 

The service of the petitioners were regularised on 1-3-1989 and that the Ministry of Finance also approved proposal for creation of 113 MLSS posts (Choukider, Forash, Mali) in order to regularise 113 contingent posts under the National Broad­casting Authority. The petitioners as contin­gent staffs were in temporary employment of the Government and were not entitled to any notice or show cause before termination of their service. Their employment was contin­gent upon the requirement of employer and when the employer was not in need of their services, he had the right of terminating their services with immediate effect. However, when the petitioners were made permanent servant of the Republic by converting their status as regular they were entitled to a minimum show cause notice before issuance of the impugned Memo removing them from their posts. The absence of such prior show cause notice is also a violation of the rule of natural justice.

 

Kajirniiddin (Md) vs Bangladesh 12 BLC 565.

 

Section 4

 

Since there is specific alter­native remedy available to the petitioners they can agitate the matter before the Admi­nistrative Tribunal and not under Article 102 of the Constitution before the High Court Division.

 

Matiur Rahman Khan (Md) vs Bangladesh 12 BLC 734.

 

 

Section 4

 

The learned Judges of the High Court Division misdirected themselves in entertaining the writ petition itself in view of the settled principle of law that the Administrative Tribunal is the proper forum for a Government Servant to agitate any violation in the matter of the service condition and, in such view of the matter, impugned judgment of the High Court Division is liable to be set-aside.

 

Bangladesh, represented by the Secretary, Ministry of Establishment vs AKM Enayetullah 11 BLC (AD) 201

 

Section 4(2)

 

The learned Administra­tive Appellate Tribunal has rightly found that the review itself was not maintainable under any law and, as such, the maintainability of a case challenging an order passed in such a review is out of the question. The original order in the notification dated 15-1-97 has not merged in the review order dated 13-8-97 and, as such, the appellant is not entitled to get any relief without assailing the original order itself. If it is a case challenging the notifi-cation dated 15-1-1997, it is barred by limitation and, on the contrary, if it is a case against the review order dated 13-8-97 claiming declaration as to entitlement ofservice benefits it is not maintainable.

 

Badsha Miah vs Sonali Bank 11 BLC (AD) 208.

 

Section 4(2), 2nd & 3rd Proviso

 

The legislature intended to see that the 2nd and the 3rd provisos are complementary to each other otherwise the 2nd proviso would not have been added before the 3rd proviso by subsequent amendment. There is no conflict between the 2nd and the 3rd provisos, rather both the provisos are complementary to each other.

 

Nazimuddin vs Government of Bangladesh 17 BLC (AD) 10.

 

Section 4(3)

 

In the case, the petitioner was suspended while he was on leave preparatory to retirement and departmental proceeding initiated. In such departmental proceeding, he was dismissed while he was already on retirement after completion of LPR. Appellate Division practically quashed such dismissal on the view that he was no more in government Service. In view of the Constitution, definition of a person in the Service of the Republic as provided by sub­section (3) of section 4 of the Administrative Tribunal Act cannot be accepted and/or approved to include a person who has already retired from Service, particularly for the purpose of challenging the impugned punishment imposed upon the petitioner after retirement. For the persons aforesaid, imposition of penalty cannot be sustained in law.

 

Horendranath Gine vs Secretary, Ministry of Post and Telecommunication 14 BLC 401.

 

Sections 4, 6 and 6A

 

In view of the provision of Rule 26(a) read with section 4(1) and section 6(1) of the Act, the impugned Memos dated 23-7-2006 and 28-8-2006 issued in intention to conduct 're-inquiry' purpor­tedly under impugned Rule 11 (3) in the same allegations, which gave rise to Adminis­trative Tribunal Case No. 19 of 2002, neither did legally dislodge the finality of the judg­ment and order dated 11-9-2002 nor did the same deprive the petitioner of his legal right acquired under section 4(1) of the Act and, as such, the impugned Memos are liable to be declared to have been issued without lawful authority and are of no legal effect.

 

Parimal Chandra Sil vs Bangladesh 16 BLC 588.

576

Administrative Tribunal India & Bangladesh

Citation: 17 BLC 355

Subject: Administrative Tribunal India & Bangladesh

Delivery Date: 2018-05-29

Administrative Tribunal India & Bangladesh

 

The Indian Administrative Tribunal exercises more comprehensive jurisdiction under Article 323A of their Constitution. Our administrative tribunal does not have such an wider jurisdiction like that of India. It does not even have jurisdiction to pass any ad-interim Order. Jurisprudence is developing and changing rapidly to meet the present day situation.

 

Abdul Wahab Sarker (Md) vs Bangladesh 17 BLC 355.

 

577

Admiralty Court Act, 1861

Citation: 13 BLC 447, 15 BLC 447, 14 BLC 816, 15 BLC 674, 16 BLC 132

Case Year: 1861

Subject: Admiralty Court

Delivery Date: 2018-05-29

Admiralty Court Act, 1861

 

Section 5

 

On a clear reading of section 5 of the Act of 1861 the High Court Division is of the view that the judgment passed in decreeing the Admiralty Suit against the defendants ex parte cannot be said to have been passed without jurisdiction. In that regard, the High Court Division finds itself to be in agreement with Mr Siddique's submission that the Admiralty Court having assumed jurisdiction under section 5 of the Act of 1861 to consider the claim of the plaintiff for supply of bunkers to the vessel 'MV Peleas K', section 230 of the Contract Act, 1872 cannot be said to have an applica­tion in these facts and cannot, therefore, be interpreted to have a co-extensive application with section 5 of the Act of 1861 fdr assumption of jurisdiction for passing a decree for claims arising from the supply of fuel to the vessel.

 

Fairdeal Marine Services vs 'MV Peleas K' 13 BLC 447.

 

Section 5

 

The decree-holder-petition­er had a right to seek a comprehensive and complete relief the first time around, but having not done so, as is evident in the facts and circumstances of this case, shall not, therefore, have any avenue open to it for placing claims periodically at subsequent dates. Having thus failed to so fully exercise its right by execution of the entire Decree at one go the decree-holdef-petitioner, and as is evident in the execution petition of 10-3-2005, having asked this Court to enforce the decree for the sum only of Taka 19,70,000, a sum lesser than the gross claimed amount of Taka 31,03,562.50 inclusive of interest, must now be taken to have accordingly waived the right to claim the balance amount of Taka 11,33,562.50. Requiring this Court to now allow satisfaction of the claim to the balance interest amount in the manner as sought in the application dated 25-9-2005 is tanta­mount to effectively asking this Court to innovate on the execution application and case which this Court is now reluctant to undertake! in the facts and circumstances.

 

Fairdeal Marine Services vs 'MV Peleas K' 15 BLC 447.

 

Section 6

 

The Exhibit-B has not been considered by the trial Court and failed to consider that the defendants delivered 15,891 tonnes of food grains at Chittagong and 9,271 tonnes of food grains at Chalna thus, the total quantity being of 25,132 tonnes of food grains (wheat) were delivered to the plaintiff. The plaintiff should not depend upon gross measurement of food grains contained in a bulk in a vessel of a surveyor. They should calculate the actual quantity of food grains. Thus the judgment and decree passed by the trial Court suffers from illegality and not sustainable in law.

 

Commerce Tanker Corpora­tion vs Bangladesh 14 BLC 816.

 

Section 6

 

It appears that the vessel 'MV Chosun Hope' has not reached late in the discharge port and used its maximum speed and dispatch to reach discharge port within the stipulated period as made in the adden­dum of the charter party. The plaintiff did not suffer any loss as yet on the count of imposi­tion of development surcharge on the con­signment of Soda Ash Light as imported through the defendant's vessel which reached Chittagong Port on 26-6-1997. In view of the discussion and reasoning as above, this Court finds that the plaintiff succeeds in proving the cause in part for which the plaintiff is entitled to a decree in part in the suit and accordingly this Court hold that the plaintiff is entitled to recover compensation from the defendant No. 1 at an amount of Taka 1,06,250 along with simple interest @ 18% PA from the date of discharge of the cargo upto the actual realization of the decreetal dues.

 

Fazlur Rahman & Co Private Ltd vs 'MV Chosun Hopi' 15 BLC 674.

 

Section 6

 

Since the plaintiff has taken delivery of the cargo after the free time, the plaintiff is responsible for his own negligence and the defendants is completely immune from any liability which may be occurred due to the hole in the container allegedly damaging the goods therein. Therefore, this Court finds that the plaintiff failed to prove the allegation that the defendants &re liable for any damage caused to the household articles of the plaintiff which was carried by the container from the port of Baltimore to the Port of Chittagong by the defendants vessel.

 

Mizamir Rahman Khan vs American Liner Systems, USA 16 BLC 132.

 

578

Admiralty Court Act, 2000

Citation: 15 BLC 710, 13 BLC 763, 14 BLC 355

Case Year: 2000

Subject: Admiralty Court

Delivery Date: 2018-05-29

Admiralty Court Act, 2000

[XUII of 2000]

 

Section 3(2)(Cha)

 

Section 3(2)(Cha)of the said Act provides that Admiralty Suit shall be maintainable for recovery of com­pensation arising out of loss of or damage to goods carried in a ship. This Court finds that the cause of the plaintiff is squarely maintainable in this jurisdiction as such issue No. 1 is disposed of in favour of the plaintiff. This Court finds that as the ullage survey report confirms that the vessel had the quantity of 24,000 MT of CDSO and the same quantity of CDSO was has been discharged by the vessel in the lighterage tankers which carried the same to the shore tanks owned by the plaintiff and therefore the plaintiffs suffered no loss or damage on this Court. There being no short landing of the cargo from the vessel 'MT Trompeteros', the claim of the plaintiff as to incurring loss in respect of short landing has no substance to be considered by this Court, Moreover, since the adjudication made by the customs authority was not lawful, the plaintiffs have also not incurred any loss in respect of the customs Penalty which is not at all a liability of the plaintiff. Therefore, the question of business loss upon the alleged short landing does not come at all.

 

S Alam Vegetable Oil Ltd vs 'MT Trompeteros 15 BLC 710.

 

Section 4(4)

 

Having, therefore, had regard to the referred provisions of section 4(4) of the Admiralty Court Act, 2000 and section 2 of the Carriage of Goods by Sea Act and having perused, in particular, this Court's previous order in Admiralty Suit No. 27 of 2005 that dealt with a similar dispute arising out of the same facts and circum­stances, this Court is inclined to hold that the Order of arrest of 10-7-2007 of the vessels 'MV Lady Fatima' and 'MV Da Li' is not sustainable in law. It is at this juncture that this Court is additionally put on notice of the fact that of the two vessels subject to that Order of arrest, one vessel namely, 'MV Lady Fatima', did not, in fact, call on and was not available at Chittagong Port at any material time. This Court has taken note of the fact, and as asserted in the supplementary affidavit filed on behalf of the defendant Nos. 1, 2 and 15, that in making the order of arrest on 10-7-2007 this Court possibly didn't have the benefit of all relevant facts and circum­stances of this case placed before it.

 

Accordingly, the application is allowed. The Order of arrest of the vessel 'MV Da Li' is hereby vacated and it is ordered that the vessel 'MV Da Li' now berthed at Chittagong Port, Chittagong be forthwith released from arrest. In the light of the fact that the other vessel 'MV Lady Fatima' had never been effectively the subject of the Order of arrest dated 10-7-2007, that Order of arrest to the extent that it applied to the vessel 'MV Lady Fatima' necessarily also stands vacated.

 

HRC Shipping Ltd vs 'MV Lady Fatima' and 'MV Da Li' (Admiralty Jurisdiction) 13 BLC 763.

 

Section 24

 

It is clear, however, that the plaintiff's claim has been proven in this regard only to that extent. The instant Admiralty Suit is thus liable to be decreed in favour of the plaintiff for a sum of Taka 32,28,703 equivalent to US $ 47,134.35 inclu­sive of cost ex parte against the defendant No. 1. Hence it is ordered that the Suit be decreed ex parte against the defendant No. 1. The plaintiff gets a decree for Taka 32,28,703 (Taka thirty-two lac, twenty-eight thousand, seven hundred and three) only inclusive of cost with interest @ 13% per annum on the decretal amount assessed from the date of the institution of the suit till the date of the realisation of the decretal amount. The decretal Amount shall be realised from the defendant No. 1.

 

Evergreen Marine Corporation vsFauzia Stwrmin Tania 14 BLC 355.

579

Admiralty Court Ain, 2000

Citation: 16 BLC 902

Case Year: 2000

Subject: Admiralty Court

Delivery Date: 2018-05-29

Admiralty Court Ain, 2000

[XUII of 2000]

 

Section 3(2)(Ja)

 

The plaintiff having stated in the plaint that he is engaged in business of shipping and substantiated it by filing document showing the dispute has arisen from the contract of carriage of goods by sea and therefore amenable under section 3(2) (Ja) of the Admiralty Court Ain, 2000.

 

Evergreen Marine Corporations vs Habib and Brothers 16 BLC 902.

580

Admiralty Court Rules, 1912

Citation: 13 BLC 763, 14 BLC 836

Case Year: 1912

Subject: Admiralty Court

Delivery Date: 2018-05-29

Admiralty Court Rules, 1912

 

Rule 3

 

Upon a perusal of the docu­ments as produced by and on behalf of the defendant Nos. 1,2,5 and 15 this Court finds no reason to question the scope and validity of the agency powers vested in the concerned Protecting and Declaring Agents to represent their foreign principals before this Court in all matters pertaining to and arising out of this Suit.

 

HRC Shipping Ltd vs 'MV Lady Fatima'and 'MVDa Li' 13 BLC 763.

 

Rule 35

 

The defendants Nos. 3 and 4 have neither adduced any oral evidence nor produced any documentary evidence to prove that the plaintiff has not supplied the necessaries i.e. bunkers and fresh water. From the deposition of the witness for the plaintiff and the documentary evidence produced in support thereof it is clear that the plaintiff's claim has been proved. The instant Admiralty Suit is thus liable to be decreed in favour of the plaintiff for a sum of US$55,465.61 equivalent to Taka 28,18,762.30 with costs against the defendant Nos. 1,3 and 4.

 

Jove International Private Ltd vs 'MV Accord' 14 BLC 836.

581

Affiliated Non-Government Madrasha Teachers Terms and Conditions of Service Regulation, 1979

Citation: 16 BLC 535

Case Year: 1979

Subject: Affiliated Non-Government Madrasha Teachers Terms and Conditions of Service

Delivery Date: 2018-05-29

Affiliated Non-Government

Madrasha Teachers Terms and

Conditions of Service Regulation, 1979

 

Regulations 11, 12, 13, & 14

 

The petitioner by filing written reply to those show cause notices several times admitted his guilt and showed repentance and prayed for exoneration. These resolutions also show that inspite of that the petitioner continued his activities which was against the interest of the academic atmosphere of Madrasha and created indiscipline among the teachers and students which clearly constituted the offence of professional misconduct as described in regulation No. 11 of Regulation of 1979. There is no illegality in the impugned order of dismissal and hence this rule is liable to be discharged.

 

Moulana Md Sigbatullah vs Bangladesh 16 BLC 535.

 

582

Arbitration Act, 1940

Citation: 11 BLC 398, 12 BLC (AD) 61, 12 BLC (AD) 150, 16 BLC (AD) 93, 11 BLC 398,

Case Year: 1940

Subject: Arbitration

Delivery Date: 2018-05-29

Arbitration Act, 1940

[X of 1940]

 

Sections 2 and 30—-

 

In the instant case the umpire rightly awarded compensation to militate the loss suffered by the contractor and the contractor is entitled to it in the facts and .circumstances of the case. The source of fund is absolutely irrelevant so far it relates to the present issue and there is no substance or material on record to classify the contract other that a contract as known in the Contract Act within the meaning of section 2 of the said Act. So, this disposes the contention so far it relates to the award of compensation by the Umpire and upholding the same by the trial Court and in view of the materials and evidence on record and discussions made aforesaid the awarding of compensation made by the Umpire does not amount to jurisdictional error in the instant case.

 

Bangladesh Water Development Board vs Titas Prokaushali Ltd 11 BLC 398.

 

Sections 2(c), 17, 21, 33, 39(i)(vi) and 41

 

In the interest of justice and equity the provision for deposit as contained in the proviso of section 33 of the Act must be extended to and read into the provisions as contained either in section 17 or section 39 of the Act, otherwise the amendment would become futile and meaningless and the defaulting party would be given the upper hand even after losing before two forums. Therefore, unhesitantly it can be said that in filing an appeal either under section 17 or 39(l)(vi) of the Act the appellant must deposit the awarded amount or furnish necessary security to the satisfaction of the appellate Court. Thus, the First Appeal No. 66 of 2004 and FMA No. 94 of 2004 are incompetent and not maintainable for non-deposit of the awarded amount or any other sufficient security to cover it up.

 

Bangladesh Water Development Board vs Titas Prokaushali Ltd 11 BLC 398.

 

Section 3

 

The proposition is well settled that if the terms of any agreement are not complied with in this respect, the consequence is not that the award becomes invalid. If from the conduct of the parties concerned it can be inferred that they agreed to the proceedings being continued beyond the period stipulated, then the objection loses all significance.

 

Ahmed Rashid (Md) vs Md Shaft 12 BLC (AD) 61.

 

Sections 8(B)(2) and 30

 

The High Court Division found that the arbitration proceeding was adjourned on 20th July 1985 in the 1st half to be taken up on the same date i.e. on 20-7-1985 at 1-00 PM but the words were penned through and accordingly, the learned Judge of the High Court Division observed that they did not come across any such order that the case was adjourned in the morning to be taken up on the same day at 1-00 PM. The High Court Division further held in view of the Laws Continuance Order, 1971 in decision of the Government to the effect that the Government does not accept any liability for the works done during the period of liberation war in 1971 does not have any legal effect and, as such, the order of Super­intending Engineer is absolutely wrong. There is no cogent reason to interfere with the same.

 

Executive Engineer (R & H) vs Raham AH Miah Contractor 12 BLC (AD) 150.

 

Section 9(b)

 

Accepting the appoint­ment of the sole arbitrator this petitioner filed written statement and also participated in the arbitration proceeding raising some other points. The High Court Division rightly dismissed the appeal.

 

Chairman, BCIC vs Anis U Ahmed Tussan 16 BLC (AD) 93.

 

Section 29

 

In an economy where infla­tion is the order of the day the Court would like to place the innocent party to the position where he would have been had there been no breach of contract. Thus, an attempt must be made to reduce the gap as far as possible by awarding interest, otherwise, the rationale behind section 73 of the Contract Act will evaporate and will become a hollow word of law. Equity must prevail. Therefore, justice and equity demands that if the decree is affirmed it should be followed by awarding of interest on the decretal amount.

 

Bangladesh Water Development Board vs Titas Prokaushali Ltd 11 BLC 398.

 

Sections 30 and 39(l)(vi)

 

In  an appeal filed under section 39(l)(vi) of the Act the Court does not act like a final Court of facts against Arbitrator's decision. In fact, it is a jurisdiction more in the nature of revision than appeal proper. It is a special law and the appellate Court in exercise of its jurisdiction must confine itself within the limits as assigned by the Act.

 

Bangladesh Water Development Board vs Titas Prokauslwli Ltd 11 BLC 398.

583

Arbitration Act, 2001

Citation: 15 BLC 808, 6 BLC 140, 16 BLC 783, 15 BLC 644, 13 BLC 457, 17 BLC 772, 15 BLC 20, 15 BLC (AD) 156, 17 BLC 662, 15 BLC 704

Case Year: 2001

Subject: Arbitration

Delivery Date: 2018-05-29

Arbitration Act, 2001

[I of 2001]

 

Section 7

 

21 deeds out of 77 deeds of transfer of schedule-'B' to the plaint and the plots relating to said 21 sale deeds were not referred to the Arbitration tribunal as per the Arbitration agreement dated 6-2-2006 and the award dated 4-5-2006 has got no manner of relation/ connection with the said 21 deeds of transfer and, as such, the suit is very much maintainable with regard to those 21 deeds of transfer and plots. Thus the learned joint District Judge erred in law in rejecting the plaint of the suit as a whole.

 

Quaderabad Housing Estate Limited vs GK Moinuddin Chowdhury 15 BLC 808.

 

Section 7 Ka

 

Although monetary compensation may well be an adequate relief, nevertheless, there may be instance, as in the present case, where an order of injunction may still be necessary to preserve the subject matter of dispute for proper and effective adjudication of the matter. In the absence of an injunction, the subject matter of the dispute shall cease to exist and, therefore, the proceedings, whether before an Arbitral Tribunal or a Court of Law, would, in effect, become infructuous. Accordingly, the appli­cation for vacating the order of direction dated 28-1-2009 stands rejected.

 

Crown Maritime Co Ltd vs Royal Boskalis Westminster, NV 16 BLC 140.

 

Sections 7(Ka) 42(2) & 43(l)(a)(iv)

 

The cited decisions endorsed the principle that the High Court Division in presiding over proceedings for setting-aside an arbitral award cannot constitute ifself a Court of appeal sitting over the decision of an arbitrator.

 

Helm Dtmgemittel Grnbh vs BCIC 16 BLC 783.

 

Sections  7Ka(b)  and 21

 

It is now clearly up to the Arbitral Tribunal to arrive at findings on this and other related issues. But that the Tribunal may do so against the context of the subject matter of the arbitration proceedings being extent on the date of any award that the Tribunal may make, this Court deems it prudent to preserve the Bank Guarantees up until such time as the Arbitral Tribunal itself will be in seisin of this matter, empowered as it otherwise to itself issue interim orders under sections 21 and 7Ka(6) of the Act in particular. Conscious that this Court must necessarily under this Section 7Ka Application exercise restraint in arriving at substantive findings, it is deemed pertinent, however, to observe that the Arbitral Tribunal shall possibly be examining efforts at reviving Bank Guarantees that are long-expired, and this circumstance would make any examination of a subsequent waiver permission granted to the respondent No.l and the continued apprehension of the Petitioner of the encashment of the Bank Guarantees beyond 7-4-2009 a purely academic one.

 

Desktop Computer Connection Ltd vs ST Electronics (Info-Software Sys) Pte Ltd 15 BLC 644.

 

Section 7Ka

 

The purpose of any section 7Ka application is for the protection and preservation of the subject-matter of arbitral proceedings with a view to ensuring that any future award may remain effectively executable. For this Court to exercise its discretion under section 7Ka of the Act it is, in the view of this Court, sine qua non that there be a prima facie satisfaction that there has indeed, at one point in time or other been a meeting of minds between the parties to this Application to refer their disputes within a certain contractual selling to arbitration.

 

KA Latif vs Olam International Ltd (Statutory) 13 BLC 457.

 

Section 27

 

The dispute as to the breach of conditions laid down in the PG itself is the subject matter of arbitration. The petitioner has already appointed arbitrator and, according to the provision of section 27 of the Act, the arbitration proceeding has already been commenced. The disputed question as to weather the PG has been placed in the bank, before or after it has expired, is to be decided by arbitrators, not by this court.

 

Siemens Bangladesh Ltd vs RZ Power Ltd (Statutory Original) 17 BLC 772.

 

Sections 23, 29, 32, 37, 42 & 43

 

The 3rd Arbitrator was neither consulted nor given any opportunity by the Chairman of the Tribunal to deliberate and express his views on the issues before making and signing the Award under challenge, Conse­quently, the award dated 8-4-2000 made by the majority members of the Arbitral Tribunal is liable to be set-aside.

 

Saudi-Bangladesh Services Company vs Saudi Arabian Airlines Corporation (Original Statutory) 15 BLC 20.

 

Sections 42 & 43

 

The High Court Division was right in holding that the 3rd arbitrator was neither consulted nor given an opportunity by the Chairman to deliberate and express his views on the issues before making and signing the award in question.

 

Saudi Arabian Airlines Corporation vs Saudi Bangladesh Services Company Ltd 15 BLC (AD) 156.

 

Section 43(l)(a)(iv)

 

Arbitration Tribunal travelled beyond its jurisdiction by entertaining and deciding issues which had not been referred to by the contending sides and the impugned order is liable to be set-aside.

 

Startus Construction Company vs Roads and Highways Department 17 BLC 662.

 

Sections 45 and 46

 

On a careful exa­mination of sections 45 and 46 of the Arbitration Act, 2001 it appears that there is a forum, for seeking remedy against the execution of an Arbitration Award but the opposite-party No. 1 without making an application under section 46 of the Arbitration Act made an application under Order XXI, rule 29 of the Code. Therefore, in the facts and circumstances of the case vis-a-vis the provision of section 46 of the Arbitration Act, 2001 the grievance of the learned Advocate for the petitioner does not appear to be without substance. The learned District Judge seriously erred in law in passing the impugned order without properly applying his judicial mind into the facts and circumstances of the case and law bearing on the subject and the same has resulted in an error in the impugned decision occasioning failure of justice.

 

Smith Co-Generation (BD) Private Limited vs Bangladesh PDB 15 BLC 704.

584

Artha Rin Adalat Ain, 1990

Citation: 13 BLC 444, 11 BLC 145, 16 BLC 277, 11 BLC 154, 12 BLC (AD) 153, 11 BLC (AD) 59, 16 BLC (AD) 107, 16 BLC 277, 16 BLC 293, 12 BLC 578, 17 BLC 832, 14 BLC 494

Case Year: 1990

Subject: Artha Rin Adalat

Delivery Date: 2018-05-29

Artha Rin Adalat Ain, 1990

[iv of 1990] (Repealed)

 

Sections 2 and 5

 

It appears that the Execution Cases were filed by the decree holder bank to execute the decree before the Adalat constituted under the Ain, 1990 and thereafter, the Artha Rin Adalat Ain, 2003 having come into force on 1-5-2003 upon repealing the Ain of 1990 in which the said execution cases automatically transferred to the Artha Rin Adalat established under the Ain, 2003 under the provision of  section 60(3) of the said Ain. It also appears that the Adalat rejected the applications for dismissing the execution cases on the ground that since there is no indication in the Ain, 2003 for disposal of the execution cases filed under the Ain, 1990 the Code of Civil Procedure shall be applicable relating to those execution cases. On an analysis of the impugned orders vis-a-vis the law, it appears that there is no d no flaw in the reasoning of the Adalat or any ground to assail the impugned orders which are based on proper appreciation of fact and law.

 

Mofiz Mia (Md) vs Artha Rin 13 BLC 444.

 

Sections 2(Kha) and 5(1)

 

On consi­deration of the averments of the plaint, it appears that the amount claimed by the bank in the suit comes within the definition of "W in which the Artha Rin Adalat Ain is fully competent to adjudicate the matter and find out the actual dues of the bank, if any, and then pass necessary order. It appears that the Adalat committed no illegality in rejecting the application filed by the defendant-petitioner under Order VII rule 10 of the Code and, as such, the impugned order does not call for any interference.

 

Shrimp and Fish Processing Plant Ltd vs National Bank Ltd 13 BLC 441

 

Sections 2(Ka)(Kha)(9)  and  5(1)

 

Only those suits which are concerned with the realisation of "loan" as defined in section 2(Kha) and as disbursed by a financial insti­tution can be filed in the Artha Rin Adalat. The loan extended by IFC to Dynamic Textile Industries Ltd pursuant to the Investment Agreement and the Guarantee Agreements comes within the definition of "loan" as set out in section 2(Kha) of the Ain. The borrower in default is a company incorporated in Bangladesh and the project for which the loan was disbursed is located in Bangladesh. The IFC has been listed in section 2(ka)(9) as one of the financial institutions capable to sue for recovery of its loans, under the Artha Rin Adalat Ain.

 

Mostaque Alam Chowdhury vs Court of Joint District Judge and 2nd Artha Rin Adalat, Dhaka 11 BLC 145.

 

Section 5(4)

 

Artha Rin Adalat is a court of limited jurisdiction created for particular purpose not to try all the intricate issues of civil nature. Per M. Moazzam Husain J (dissenting).

 

Arab Bangladesh Bank Ltd vs Md. Salauddin 16 BLC 277.

 

Section 5(4)

 

A separate suit is not barred provided his remedies under the Artha Rin Adalat Ain stood barred at the time of filing of the suit for no fault of his own. The door of the Code of Civil Procedure is still open to the petitioner if he can prove that no summons was served upon him and he had no knowledge of .the suit. The learned Advocate for the opposite-party No. 1 also admits that petitioner can seek his relief under Order IX, rule 13 of the Code if he can overcome the bar of limitation.

 

Ibn Sina Trust vs Arab Bangladesh Bank Ltd 11 BLC 154.

 

Sections 5(4), 5 and 6(Ka)

 

Since section 5(4) and (5) of the Artha Rin Adalat Ain, 1990 has clothed the Artha Rin Adalat with the power to exercise its jurisdiction as a Civil Court following the provisions of the Code of C'/il Procedure insofar as, it is not inconsistent with any provision of the Artha Rin Adalat Ain, the legislature was required to make express provision in section 6(Ka) to exclude the operation of section 56 of the Code of Civil Procedure, but it was not done so. Section 6(Ka) of the Artha Rin Adalat Ain, 1990 cannot, therefore, be construed to exclude the operation of section 56 of the Code of Civil Procedure in matters of execution of any decree passed by the Artha Rin Adalat.

 

Hazera Begum vs Artha Rin Adalat 12 BLC (AD) 153.

 

Section 6

 

Considering the conveni­ence of the respondent No. 2 in a situation like the instant one, the appellant is not competent to file the suit as filed in the Court of Sub-ordinate Judge, Dhaka impleading the respondent No. 1 whose Head Office is at Dhaka and carries on business through its branches in Rangpur and other places. The High Court Division has quite correctly passed the order for return of the plaint to the learned Advocate of the appellant for filing the same in the appropriate Court.

 

Habibur Rahman vs Uttara Bank Ltd 11 BLC (AD) 59.

 

Sections 6 and 7

 

On a combined reading of section 6 and 7, it appears that the expression "order" used in section 6 is super­fluous in view of the clear language used iii section 7 that an appeal lies from judgment and decree, and that no appeal lies from any order passed by the Adalat.

 

Rupali Bank Ltd, Dhaka vs Brick Linkers Ltd 16 BLC (AD) 107.

 

Section 6(1)

 

Separate suit brought to challenge any order or decree passed by the Artha Rin Adalat being barred by law the plaint is liable to be rejected under Order VII rule 11 of the CPC Per Sheikh Abdul Awal, j (delivering the main judgment).

 

Arab Bangla­desh Bank Ltd vs Md. Salauddin 16 BLC 277.

 

Section 6(1)

 

No form of word seeking to limit the jurisdiction of the ordinary court protects a nullity. A judgment-debtor not concerned with the loan either as borrower, mortgagor or guarantor is not precluded by the ouster clause from protecting his property by resort to ordinary civil court. Per M. Moazzam Husain J (dissenting).

 

Arab Bangladesh Bank Ltd vs Md. Salauddin 16 BLC 277.

 

Sections 6(1) and 7

 

Section 6 of the Arthan Rin Adalat Ain, 1990 or for that matter Section 20 of Ain,2003 create a bar in proceeding with a subsequent suit making a prayer for setting-aside an ex-parte decree even on the ground of fraud or even with a prayer for another declaration for the Power of Attorney and Memorandum of Deposit of Title Documents as forged, fabricated and false rather the only remedy available for the opposite-party No. 1 was to go for an application under Order IX Rule 13 of the Code of Civil Procedure or an appeal under Section 7 or Section 41 of the Artha Rin Adalat Ain, 1990 and 2003 respectively. Per Nozrul Islam Chowdhury J (Agreeing with Awal, J).

 

Arab Bangladesh Bank Ltd vs Md. Salauddin 16 BLC 293.

 

Section 7

 

The petitioner being a defendant in the suit having not contested the same, preferring of the writ petition with­out availing the forum of appeal as provided under section 41 of the Ain or challenging the ex parte decree under section 19 of the Ain, the writ petition is not maintainable. The provision of appeal has been specifically given in section 7 of the Ain of 1990 which is the provision of appeal under section 41 of the Ain of 2003. So, the law is settled by the Appellate Division that where the specific provision for appeal is available or provided in the statute no writ lies. There is no ques­tion as to appeal under the old Ain or under the new Ain. Question is, whether the statute provides the forum of appeal. Admittedly, both the repealed and the new Ains provide forum of appeal, of course, under two differ­ent sections but the provision is for chal­lenging the judgment and decree of the Artha Rin Adalat in appeal.

 

That being the adequate alternative remedy provided under Article 102(2)(a)(ii) of the Constitution, under which the petitioner has come, cannot be attracted.

 

KM Hamdor Rahman vs National Housing Finance & Investments Ltd 12 BLC 578.

 

Section 7(4)(2)

 

The provisions of limi­tation act cannot be attracted or applied for the purpose of condonation of delay in preferring an Artha Rin Ain appeal, as per sub-sections 2 and 4 of section 7 of the Ain, it is mandatory condition that without depositing the 50% of the decretal amount an appeal cannot be accepted. Preferring an appeal within 30 days without depositing the 50% of decretal amount is incomputable.

 

Mashaha International Company Ltd vs Sonali Bank Ltd 17 BLC 832.

 

Section 8

 

The learned trial Court gave emphasis on the statement of the local manager of the plaintiff-Bank. But the Bank is a financial institution. It deals with the public money. Particular official has got no personal option to deal in the financial matter. There­fore, the statement of the local manager of the plaintiff-Bank in his cross-examination is not binding upon the Bank. The learned trial Court considered the claim of the Bank and exempted 50% interest. So, he cannot reduce the rate of interest which is in the sanction letter.

 

Pubali Bank Ltd vs Md Nunil Hoque 14 BLC 494.

585

Artha Rin Adalat Ain, 2003

Citation: 16 BLC 1, 16 BLC 195, 14 BLC 716,17 BLC 380, 12 BLC 742, 16 BLC 277, 14 BLC 412, 15 BLC 458, 12 BLC 22, 14 BLC 111, 14 BLC 266, 11 BLC 236, 13 BLC 572, 17 BLC 531, 16 BLC 277, 16 BLC 293, 17 BLC 426, 12 BLC 723,

Case Year: 2003

Subject: Artha Rin Adalat

Delivery Date: 2018-05-29

Artha Rin Adalat Ain, 2003

[VIII of 2003]

 

Section 2 (Ka)(4)

 

On the question of removal the name of Bangladesh House Building Finance Corporation from the definition clause of Artha Rin Adalat Ain, 2003, it is found that the Appellate Division pronounced the judgment on 22-7-1996 i.e. long before coming into force of Artha Rin Adalat Ain, 2003. It is very unfortunate that Ministry of Law, Justice and Parliamentary Affairs still did not act as per the decision of 49 DLR (AD) 80 and 47 DLR 158 thereby causes hindrance in the matter of administra­tion of Justice. It is expected that in no time Ministry of Law, Justice and Parliamentary Affairs will act as per the aforesaid decisions and delete House Building Finance Corpora­tion from section 2 Ka(4) of Artha Rin Adalat Ain, 2003.

 

Begum Shirin Akhtar vs Bangladesh House Building Finance Corporation 16 BLC 1.

 

Sections 3, 26, 30 and 34

 

Since the word "Ifllffij" (directly) has been used in section 34(10) of the Ain, it cannot be inter­preted that prior show cause notice is necessary as the meaning of section 34(10) would be nugatory is such a case. Thus, the provisions of section 51 and Order XXI, rule 37 of the Code are in conflict with the provisions of section 34(1)(9) (10) of the Ain. Under section 26 of the Ain the provision of the Code is applicable so far as it is not inconsistent with the provisions of the Ain which includes the provisions of section 34 of the Ain. Moreover, under section 30 of the Ain special provision has been made for publishing notice after filing of the execution case undtv rrrUun circumstances. From the sub-sections (9) and (10) of section 34 of the Ain, there is nothing to show that there is any scope of issuing any show cause notice before issuing warrant of arrest rather it appears that warrant of arrest may be issued directly. What is not in the law itself, cannot be imported in the law by way of interpretation.

 

Manik K Bhattacherjee vs Artha Rin Adalat 16 BLC 195.

 

Sections 3, 26 & 34

 

The provision of warrant of arrest has been specifically incorporated by the legislature in order to ensure speedy recovery of long standing dues which remained unadjusted by the loan defaulters using the language. With the object to circumscribe said defaulted culture of the borrowers some deterrent provisions like sections 19,41,42,44, including 34, have been incorporated in the Act VIII of 2003 which is absolutely within the wisdom and domain of the legislature.

 

ABM Shirajum Monir vs Sub­ordinate Judge 14 BLC 716.

 

Sections 3, 26, 30 & 34

 

It cannot be said that Order XXI, rule 37 of the Code is identical with the provision laid down in section 34 of the Ain of 2003. Moreover, the notice as required under Order XXI, rule 37 of the Code is also not indispensable, rather it was followed by a proviso where the Court preserved the power not to issue such notice if it comes within the knowledge that in order to cause delay the judgment-debtor has been adopting dilatory tactics. Moreso, the said provision stands for money decree passed in a Money Suit but not in a suit for recovery of bank loan which may also be called a money decree for which special law exists for the said purpose e.g. Act VIII of 2003. Accor­dingly, the said provision of the Code as to issuance of show cause notice cannot be allowed to be implemented alone leaving the proviso laid down therein in order to issue a warrant of arrest against the judgment-debtor under section 34(1) of the Artha Rin Adalat Ain, 2003.

 

ABM Shirajum Monir vs Sub-ordinate Judge 14 BLC 716.

 

Section 5

 

Adalat cannot entertain any execution case to execute the decree in the preliminary form requiring final decree and, as such, continuation of the execution case is unlawful apparent on the face of record without having any legal sanction.

 

Inter­national Tannery vs Judge, Artha Rin Adalat 17 BLC 380.

 

Sections 5(4) and 60(3)

 

The decree for realisation of money was passed on 10-3-2003 as per provision of the Artha Rin Adalat Ain, 1990. The Execution Case No. 30 of 2004 was filed when the Artha Rin Adalat Ain, 2003 came into effect. From saving clause of section 60(3) of the Artha Rin Adalat Ain, 2003 it appears that the proceeding which were filed under the Artha Rin Ain 1990 but proceeded when the Artha Rin Adalat Ain, 2003 came into force, shall proceed as per provision of the Artha Rin Adalat Ain, 2003 as far as it practical. So, from this provision it appears that the execution case has been proceeding in accordance with law.

 

Shahjahan Mia (Md) vs Government of Bangladesh 12 BLC 742.

 

Section 6(1)

 

Artha Rin Adalat is a court of limited jurisdiction created for parti­cular purpose-not to try all the intricate issues of civil nature. Per M. Moazzam Husain J (dissenting).

 

Arab Bangladesh Bank Ltd vs Md. Salauddin 16 BLC 277

 

Sections 6(5) and 57

 

The provision of section 6(5) of the Artha Rin Adalat Ain, 2003 are applicable only when the properties were mortgaged both by the principal debtor/ loanee and the third party mortgagor. In the instant case, admittedly no property was mortgaged by the principal debtor-loanee but the property was mortgaged by the petitioner. So, in absence of any other pro­perty mortgaged by the principal-debtor in favour of the Bank, the mortgaged property of the petitioner-judgment-debtor is to be sold to realise the decretal amount. Therefore, the Adalat was bound to sell the mortgaged property which was included in the schedule of the plaint/decree.

 

Abdus Sattar Miah vs Bangladesh 14 BLC 412.

 

Sections 6(5) and 32(1)(2)

 

From a plain reading of the provisions of sections 32(1)(2) of the Artha Rin Adalat Ain, 2003, it manifests that any third party may submit his claim in any execution case arisen put of a decree or an order of the Artha Rin Adalat after making deposit of 25% decretal amount as security otherwise, the Adalat shall reject the claim.

 

Harunur Rashid Bhuiyan vs Pubali Bank Ltd 15 BLC 458.

 

Sections 12(1)(2)(3)(4)(6)(7), 19 and 41

 

The petitioner being a defendant in the suit having not contested the same, preferring of the writ petition without availing the forum of appeal as provided under section 41 of the Ain or challenging the ex parte decree under section 19 of the Ain, the writ petition is not maintainable. KM Hamdor Rahman vs National Housing Finance & Investments Ltd 12 BLC 578.

 

Sections 12(6), 19, 20, 41 and 47

 

The precondition of depositing 50% of the decretal amount is in the law since 1990. The point raised in this Writ Petition has also been challenged in various other cases under the previous law before this court and the issue has been settled by the High Court Division as well as by the Appellate Division in several decisions. It has already been settled that the Artha Rin Adalat is a Civil Court having all the powers and jurisdiction under the Code of Civil Procedure subject to the provision of the said Artha Rin Adalat Ain. It has also been settled that said Ain provided that it is a civil Court with confined and limitation jurisdiction to deal with the Artha Rin cases and the law has been made for the purpose of realisation of money from the defaulting borrowers, accordingly the legislature has enacted such provision for depositing 50% of the decretal amount both in preferring appeal and in filing application against the ex parte decree.

 

Anisur Rahman & KM Ziaul Haque vs Government of Bangladesh 12 BLC 22.

 

Sections 12(1)(2)(3)(6) and 49

 

In the suit in hand the provisions of sub-section (6) of section 12 of Ain 2003 are not applicable as the instant suit being filed on 4-11-1999 there was no scope for compliance with the provisions of sub-section (3) of the section 12 of the Ain, 2003 which came into force on 10-3-2003 and further, the contents of the order dated 16-5-2003 passed in the instant suit reveals that the petitioner, though filed an application under section 49 of the Ain of 2003 praying for allowing him to repay the outstanding dues by installments but did not file any application before the Artha Rin Adalat praying for selling the mortgaged property in terms of sub-section (3) of section 12 of Ain 2003 and now, in the writ petition the petitioner, for the first time, tried to make out a case that the Artha Rin Adalat should have complied with the provision of sub­section (6) of section 12 of Ain, 2003. The High Court Division on due consideration of the materials on record and the law involved discharged the Rule.

 

AQM Shah Alam Chowdhury vs Bangladesh 13 BLC 122.

 

Sections 12 and 33

 

The auction of the concerned property of the petitioners was not sold in auction in pursuance of a decree or order as envisaged under section 33 of the Ain but the auction was made prior to filing of the suit in pursuance to sub-section 1 of section 12 of the Ain, as such, under sub­section 4 of section 12, the provisions of section 33 are not mandatory.

 

Zinnatul Ara vs Bangladesh 15 BLC (AD) 168.

 

Sections 12, 46 and 57

 

It appears that the provision of section 46 of the Ain, 2003 so far it relates to the question of filing the suit by the bank or financial institution against the borrower within specified time is direc­tory and not at all mandatory and therefore, in any view of the matter, the suit is not barred by limitation. Thus, there is no illegality or impropriety in the impugned order of the learned Judge of Artha Rin Adalat No. 1, Dhaka. Hence, the Rule fails.

 

Shahabuddin Klwn (Md) vs Bangladesh 14 BLC 111.

 

Sections 17(1)(2)

 

The period prescri­bed for disposal of Artha Rin suit as laid down in section 17 of the Ain, 2003 is merely directory and not mandatory. So, there is no legal mandate to stop or dismiss the Artha Rin suit if the trial of the same be not concluded within the period of 90 days and further extended period of 30 days. The Artha Rin Adalat Ain, 2003 has been promul­gated by the Parliament incorporating different provisions including stipulated period of disposal of the suit. The only purpose is for speedy disposal of the suit, otherwise the defaulting borrowers of the financial institutions with their best efforts will cause delay in the process of trial.

 

Bangla­desh German Food (Pvt) Ltd vs Bangladesh 14 BLC 266.

 

Section 13

 

The petitioner being the defendants may still raise the question of liability which they did not raise at the time of framing of issues in the suit by filing an application under section 13 of the Artha Rin Adalat Ain, 2003 and the Court may, on such application, adjudicate upon the question of liability of the present petitioners as issues of law.

 

Prime Global Ltd vs Artha Rin Adalat 11 BLC 236.

 

Section 17(1)(2)

 

Section 17(1)(2) of the Ain albeit provided time limit to conclude the trial firstly within 90 days if not; extend the period for further period of 30 days, if not concluded within the aforesaid period; the Ain does not provide any consequential effect or procedure or resulting use of the suit and, as such, the time limit as provided under section 17(1)(2) of the Artha Rin Adalat Ain is not mandatory as it has no consequential effect or resulting use laid down in the Act itself even if the suit is not disposed of within the time limit. Artha Rin Adalat is a civil Court having limited jurisdiction. Instant suit was filed in 1989 and it has crossed Artha Rin Adalat Ain, 1990 and now continuing under the provisions of Artha Rin Adalat Ain, 2003 and by the law it is the intention of the legislature to dispose of the suit on merit and also with an intention to dispose of the suit expeditiously or on priority basis and, as such, the provisions as laid down in section 17 of the Ain is merely directory one.

 

Jewel Cotton Spinning and Weaving Mills Ltd vs Bangladesh 13 BLC 572.

 

Section 19

 

Any application is com­petent under section 19 if it is filed with 10% of deposit as required under the section. The provision cannot be said to be violative of fundamental right of the petitioner guaranteed by Article 27, 31, 40 and 42 of the Constitution.

 

Mohiuddin Mahmood vs Bangladesh 17 BLC 531.

 

Section 19(2)

 

The petitioner can only get any relief if, and only if, the petitioner did not have any knowledge as to the exparte decree or as to the Jari Case. Either by herself or through her constituted attorney would be sufficient for knowledge of the case which have given her to file an application under sub-section (2) within 30 days from know­ledge for filing an application for setting-aside the exparte decree.

 

Dilruba Morshed vs Artha Rin Adalat BLC 98.

 

Sections 19 and 41

 

The statutory requirement to deposit legal requirements particularly in case of Artha Rin Adalat being a special law is mandatory. There cannot be any escape from fulfillment of legal necessity as envisaged in section 19 or likewise section 41 of the Ain.

 

Mohiuddin Mahmood vs Bangladesh 17 BLC 531.

 

Section 20

 

No form of word seeking to limit the jurisdiction of the ordinary court protects a nullity. A judgment-debtor not concerned with the loan either as borrower, mortgagor or guarantor is not precluded by the ouster clause from protecting his pro­perty by resort to ordinary civil court. Per M. Moazzam Husain J (dissenting).

 

Arab Bangladesh Bank Ltd vs Md. Salauddin 16 BLC 277.

 

Section 20

 

Since the intention of law is not to put a person unconnected with loan transaction into the rigorous procedure of a special statute for protection of his property. He can, therefore, maintain his suit in an ordinary civil Court for relief. Per M. Moaz­zam Husain J (dissenting).

 

Arab Bangladesh Bank Ltd vs Md. Salauddin 16 BLC 277.

 

Sections 20 and 19

 

No question shall be raised before any court or authority about any pending proceeding in Artha Rin Adalat or its order, judgment or decree. The judgment or decree of Artha Rin Adalat is final and the same cannot be questioned in any other Court under any separate pro­ceeding. Per Sheikh Abdul Awal, J (delivering the main judgment).

 

Arab Bangla­desh Bank Ltd vs Md. Salauddin 16 BLC 277.

 

Sections 20 and 41

 

Section 6 of the Artha Rin Adalat Ain, 1990 or for that matter Section 20 of Ain, 2003 create a bar in proceeding with a subsequent suit making a prayer for setting-aside an ex-parte decree even on the ground of fraud or even with a prayer for another declaration for the Power of Attorney and Memorandum of Deposit of Title Documents as forged, fabricated and false rather the only remedy available for the opposite-party No. 1 was to go for an application under Order IX Rule 13 of the Code of Civil Procedure or an appeal under Section 7 or Section 41 of the Artha Rin Adalat Ain, 1990 and 2003 respectively. Per Nozrul Islam Chowdhury J (Agreeing with Awal, J).

 

Arab Bangladesh Bank Ltd vs Md. Salauddin 16 BLC 293.

 

Section 26

 

Section 26 of the Ain of 2003 has expressly debarred application of the provisions of other statutes including the Code of Civil Procedure pending execution proceedings so far it is inconsistent with the provisions of the Ain of 2003. In other words, the relevant provisions of the Code of Civil Procedure so far it relates to the procedure to make the suit ready for holding trial of Artha Rin Suit as well as for execution of decrees are applicable which are not in conflict with the Ain of 2003.

 

Bodiuzzaman Milan vs Bangladesh Commerce Bank Limited 17 BLC 426.

 

Section 27(1)

 

Rule 58 of Order XXI of the Code of Civil Procedure requires an executing Court to investigate the claim or objection of an objector as if he was a party to suit. Such investigation is dispensed with only when the court considers the claim or objection was designedly or unnecessarily delayed. The court did not find the claim or objection of AB Bank was delayed. In the facts and circumstances of the case and in the interest of justice, the Fourth Artha Rin Adalat which now holds the property must dispose of both execution cases under section 27 of the Ain. In the result, the appeal is disposed of without however any order as to cost. Third Artha Rin Adalat is directed to send the decree dated 29-7-99 passed by it in Title Suit No. 125 of 1992 to the Fourth Artha Rin Adalat for execution and Fourth Artha Rin Adalat is directed to execute both the decrees in accordance with law.

 

Arab Bangladesh Bank Ltd vs Janata Bank 11 BLC 186

 

Section 28(3)(4)

 

According to section 28(3)(4) of the Ain, the second execution case is to be filed within one year from the date of disposal of the previous execution case, and or within 6 years from the date of filing of the first execution case.

 

Iftekhar Uddin Ahmed vs Artha Rin Adalat 17 BLC 220

 

Sections 26 and 33 (4) (5) (7) (9)

 

in the instant case, the learned Judge ought to have taken necessary steps to put the decree-holder in physical possession of the concerned property of the Judgment-debtor as prayed for. Since specific provision is not available in the Act enabling the Artha Rin Court to put the decree-holder into possession, the Court may exercise its such jurisdiction as provided in rules 97 and 98 under Order XXI of the Code read with section 26 of the Act, and give necessary directions to execute its order.

 

IFIC Bank Ltd vs Mariner Fashions Wear Pvt Ltd 12 BLC 723.

 

Sections 28(3), 37 and 60(3)

 

Since there was no suit of the Financial Institutions pending before any Commercial Court after 1990. Thereafter, Artha Rin Adalat Ain 2003 having come into force on 1-5-2003 upon repealing the Ain of 1990, the said execution case was transferred to the Artha Rin Adalat constituted under the Ain 2003 pursuant to section 60(3) of the said Ain. As such, dismissal of the said execution case on 16-5-2003 for default was made by the Adalat constituted under Ain 2003. Hence, filing of the second execution case on 13-11-2003 is very much within one year of the dismissal of the earlier case and is wholly within the scope of section 28(3) of the said Ain of 2003. Thus, there is no illegality in filing of the execution case and continuation of the pro­ceeding of the same. Moreover, the time limit fixed by section 37 of the Ain 2003, for disposal of execution case within 150 days being "directory" not "mandatory", as decided in Writ Petition No. 7615 of 2005 (M Serajul Islam vs Bangladesh) by this bench, there is no illegality in the proceedings of the execution case.

 

Khurshid Alam (Md) vs Judge, Artha Rin Adalat 12 BLC 592

 

Section 28(2)

 

After the passing of the preliminary decree in 1992 final decree was signed on 1-2-2000 and it is also admitted that the Execution was filed on 12-5-2003 which is beyond the prescribed limitation for filing the same under section 28 of the Ain and for that reason the executing Court acted illegally in not holding that the Execution Case is barred under section 28(2) of the Ain.

 

Momin Auto­matic Rice Mills Limited vs Bangladesh Shilpa Bank 17 BLC 337.

 

Sections 33(1)(2)(3)(4)(5)(7)(8)

 

When the decree-holder filed an application as required under sub-section (7) of section 33 of the said Ain the Court is at liberty to issue certificate when plainiflf" application has been filed by the decree-holder. So, there is no illegality or infirmity in the order of issuance of the certificate dated 15-9-2008, which is awaiting for registration under sub-section (8) of section 33 of the said Ain.

 

Atiqullah vs Artha Rin Adalat (Criminal + civil) 16 BLC 486.

 

Section 32

 

The Adalat by exercising its discretion under order XXI, rule 100 and 101 of the Code entertained the application and after delivery of possession of the schedule property to the petitioner-auction-purchaser, the Adalat has not become functus-officio.

 

Sanaullah vs Government of Bangladesh 17 BLC 481

 

Section 32(2)

 

Artha Rin Adalat Ain is a special law providing special provisions to combat different situations. Section 32(2) is one which gives a right to any third party to file application against any grievance that to be remedied. But the law enjoins a strict compliance of the provision in its true purport and spirit. It has to be borne in mind that this special provision of law cannot be circumvent by bringing some fallacious argument that would negate the main spirit of law as propounded by the legislature in its wisdom.

 

Saiful Islam (Md) vs Bangladesh 17 BLC 558

 

Section 32(2)

 

Both parties alleged fraud against each other. Whether there was any fraud or not itself is also disputed question of fact and its answer will depend on the answer to the question whether the petitioner is the real owner of the flats or whether she is only custodian of the flats and the judgment-debtor No. 2 is the real owner.

 

Considering the facts and circumstances of the case and the provision of section 32(2) of the Ain, the petitioner is required to furnish security to the extent of 25% of the decretal amount to maintain an application under the Ain.

 

Rashida Mahabub vs IFIC Bank Ltd 13 BLC 78.

 

Sections 33(5) and 34

 

In Civil Revision No. 2573 of 2007, second execution case was started on the basis of certificate issued by the Adalat under section 33(5) of the Ain in connection with Artha Execution Case No. 76 of 2001, having failed to auction sale the mortgaged property and that the impugned order of warrant of arrest was made after issuance of show cause notice upon the judgment debtors providing oppor­tunity to give reply as to why they should not be detained in civil prison. The petitioners did not appear before the Court. But within a period of one month from the date of issuance of the impugned order they have filed the present revisional application and obtained the present Rule and an interim order of stay. Since the petitioners have not come with clean hand they cannot seek for exercising Court's inherent jurisdiction in the name of ends of justice. Further, considering the relevant provisions of Artha Rin Adalat Ain, 2003 and in the facts and circumstances of the case this Court cannot invoke its inherent power under section 151 of the Code of Civil Procedure.

 

Syed Monjur Morshed vs Manager, Agrani Bank Ltd 14 BLC 107 501.

 

Section 33(5)(9)

 

When the certificate has been issued under section 33(5) in favour of the decree holder, the execution procee­ding is disposed of as per section 33(9) of the Ain. Issuing the certificate under section pre­supposes compliance of the formalities under section 33(1-4) of Ain.

 

Sheuly Khanam vs Artha Rm Adalat, 2nd Court, Dhaka 17 BLC 579.

 

Sections 33, 38 and 49

 

The parties in their petition can provide for re-payment of the entire agreed dues in one installment. In the present case, it is agreed between the parties that the judgment-debtor would re­pay the entire agreed dues of Taka 2 crore 7 lac by 31-12-2008. The learned Judge can still consider such a prayer within the ambit of section 49. Under such circumstances with­out issuing any Rule, the order dated 15-3-2007, (Annexure-D), passed by the Artha Rin Court, Comilla, in Artha Execution Case No. 339 of 2004, is declared illegal and is of no legal effect.

 

Quayyaim Steel Mills Ltd vs Pubali Bank 13 BLC 334.

 

Sections 33 and 34

 

Section 34 of the Ain, 2003 provides for ordering civil impri­sonment ttpto 6 months against a judgment-debtor for compelling to satisfy the decree. Section 34 is not dependent upon section 33. Provisions of section 34 of the Artha Rin Adalat Ain, 2003 that the law provides for simple civil imprisonment of the judgment-debtor to compel to make the payment for satisfaction of the decree and is not an alternative punishment in lieu of payment of the decretal amount. Civil imprisonment will not exempt payment of the decretal amount.

 

Provat Kumar Das vs Agrani Bank 15 BLC (AD) 113.

 

Sections 33 and 34

 

From a combined reading of sub-sections of section 34 of the Artha Rin Adalat Ain, 2003 it transpires that the Adalat is empowered to pass an order of warrant of arrest/civil imprisonment directly when no auction sale is possible to be held for any reason. The auction sale notice was published in the 'Daily Sonar Desh' on 19-2-2004 mentioning date of auction sale on 23-2-2004 at 3-00 PM but the property in question was not sold due to non-availability of the auction purchaser. Therefore, the contention of the learned Advocate for the petitioner that no attempt was made to sale the property as per mandatory provision of section 34(9) of the Ain, 2003 by the res­pondent No. 2 before passing the impugned order of civil imprisonment is wholly untenable.

 

Provat Kumar Das vs Agrani Bank 15 BLC 180.

 

Section 34(1)

 

It appears that the application has been filed by (he learned Advocate on behalf of the Bank but the application is neither signed by the official/ authority of the Bank nor the application contains the verification/affidavit thereto and therefore, it cannot be said that the appli­cation in question was filed by the decree-holder Bank as per provision of section 34(1) of the Artha Rin Adalat Ain, 2003.

 

Golam Haider vs Bangladesh 15 BLC 831.

 

Section 33(7)Going through the provision laid down in Article 42 and 31 of the Constitution but it appears that there is no scope to say that the provision laid in section 33(7) in any way is found to be inconsistent the provision laid down in the Constitution and hence there is no merit in the Rule in that Count.

 

Atiqitltah vs Artha Rin Adalat 16 BLC 489.

 

Section 34

 

From a combined reading of those sub-sections to section 34 of the Ain, 2003 it transpires that the Adalat is competent enough to award civil imprisonment to the extent of 6(six) months to the judgment debtor/s for recovery of decretal amount on an application filed by the decree-holder Bank when no auction sale is possible to be held for any reason. On a careful exmination of the application under section 34 of the Ain, 2003, it appears that in the application under section 34 of the Ain, 2003 for issuing warrant of arrest against the judgment debtors the concerned official/authority of the Bank neither put his signature nor made any verification/affidavit thereto and therefore, it cannot be said that the application in question was filed by the decree-holder-Bank as per provision of section 34(1) of the Ain, 2003. In the result, the Rule is made absolute without any order as to cost. The impugned order dated 28-9-2004 insorfar as it relates to warrant of arrest is hereby declared to have been made without lawful authority and is of no legal effect. However, the decree-holder-Bank shall still approach before the Adalat for issuance of warrant of arrest as per provisions of section 34(1) of the Ain, 2003 if he so likes.

 

Sheikh Nazmul Haque vs Bangladesh 14 BLC 107.

 

Section 34

 

Since the legislature has authorised the Adalat vide section 34 of the Ain of 2003 to issue warrant of arrest to detain him in civil prison as a mode of recovery of the decretal amount speedily hence it is not unjust, unfair or unreasonable, resulting to declare it ultra vires the Article 31 of the Constitution. It is to be remembered that reasonable and non-arbitrary exercise of decision is an inbuilt requirement of good piece of legislation which cannot be knocked down by the Court which will go to under­mine the act of parliament rather to be reduced to oligarchy of judges which is neither desirable nor can it be brought within the scheme of the Constitution. In view of the above, there is no requirement to issue another notice before issuance of the process of arrest under section 34(1) of the Ain of 2003 at the execution stage in the name of natural justice.

 

ABM Shirajum Monir vs Sub-ordinate Judge 14 BLC 716.

 

Section 34

 

It appears that warrant of arrest has been issued against the judgment debtor petitioner after following the provisions of section 34 of the Artha Rin Adalat Ain, 2003. Hence the Rule fails.

 

Ziaul Huq vs Artha Rin Adalat 14 BLC 809.

 

Sections 34 & 44

 

In the present Artha Rin Adalat Ain, 2003 the legislature by incorporating section 44 has expressly debarred filing revisional application against an interlocutory order passed by the Adalat pending execution proceeding. The impug­ned orders passed by the Adalat under section 34 of the Ain, 2003 in the present cases are, no doubt, interlocutory orders. Accor­dingly, in view of section 44 of the Ain those orders are not revisable under section 115(1) of the Code of Civil Procedure. As such, all the respective Rules issued under section 115(1) of the Code of Civil Procedure are liable to be discharged as being not maintain­able.

 

Syed Monjur Morshed vs Manager, Agrani Bank Ltd 14 BLC 501.

 

Section 34(1)

 

From the application filed by the Bank under section 34(1) of the Ain it transpires that the said application was filed by Mr Harunur Rashid, Senior officer of the Bank on 3-4-2004. Therefore, it is evident that authority was given to Md Harunur Rashid by the Bank on 9-1-2008 and the application was filed by Md Harunur Rashid on 3-4-2008 before the Adalat for issuance of warrant of arrest against the judgment-debtors by virtue of the said authorization letter. On examination of the said application it appears that there in no illegality in the said application rather it has been filed in consonance with the provision of the section 34 (1 ) of the Ain.

 

Manik K Bhattacherjee vs Artha Rin Attaint 16 BLC 195.

 

Section 34

 

From a combined reading of those sub-sections of section 34 of the Artha Rin Adalat Ain, 2003 it manifests that the Adalat is empowered to pass an order of Warrant of Arrest/Civil Imprisonment directly on the basis of an application filed by the decree-holder bank when no auction sale is possible to be held for any reason.

 

Sujit Kumar Mondal vs Bangladesh 13 BLC 391.

 

Section 37

 

It is apparent that the requirement of time-frame for disposal of an execution case as laid down in section 37 of the Ain, 2003, is merely directory and not mandatory. So, it cannot be said that if the execution case is not disposed of within 90 + 60 = 150 days it will be automatically stopped or dismissed.

 

Sujit Kumar Mondal vs Bangla­desh 13 BLC 391.

 

Sections 37 and 49

 

It appears that the time-frame for disposal of the execution case has been provided for in section 37 of the Act. But it would appear from the other provi­sions of the Act, notably section 49, that in case of allowing the installment an execution case can be extended beyond 150 days and at least for the next three years from the date of allowing an application filed by the judg­ment-debtor, praying for installments and agreed to by the decree-holder. In such a case, the period of time under section 37 of the Act would be subject to the application of the provisions of section 49 as envisaged under sub-section 2 of section 37 of the Act. It is apparent that the requirement of time-frame for disposal of an execution case, as stated in section 37, is merely directory and not mandatory.

 

Monwar Hossain vs Government of Bangladesh 13 BLC 181.

 

Section 41

 

The learned Advocate for the petitioner submits that the petitioner is to deposit 50% of the decretal amount in order to prefer an appeal under section 41 of the Ain and therefore, the appeal is not an equally efficacious remedy for the petitioners and so, that writ petition is maintainable. Moreover, the suit having been filed under the Ain and the Ain being a special law the provision of the Ain shall be applicable in the instant case.

 

United Food Complex Ltd vs Artha Rin Adalat 15 BLC 489.

 

Section 41

 

In view of the well settled principle of law as to the question of maintainability of the Writ Petition, there is no hesitation to hold that the petitioner has miserably failed to cross the first hurdle, inasmuch as Artha Rin Adalat Ain, 2003 is a special law and special provision having been provided in Artha Rin Adalat Ain, 2003 for preferring appeal against the judgment and decree passed by the Artha Rin Adalat. In Order to save the valuable public time since the petitioner could not cross the first hurdle, it is not necessary to consider the other grounds of the writ petition.

 

Edruk Ltd vs Secretary, Ministry of Industries 14 BLC 102.

 

Section 41

 

It appears that the judg­ment of the Artha Rin Adalat was appealable under the Artha Rin Adalat Ain, 2003 and instead of filing the appeal in lime the petitioner manufactured letter dated 26-1-2000 in order to justify their failure to file appeal in time. The remedy in the writ jurisdiction is an equitable one and to seek the same one must come with clean hands and since two judges of the High Court Division held that the petitioner did not come to the High Court Division with clean hands have rightly found the writ petition as not maintainable.

 

Oriental Bank Ltd vs AB Siddiq (Ludu) 13 BLC (AD) 144.

 

Section 41(2)

 

It appears that the legislature has set down the condition is section 41(2) of the Ain that 50% of the decretal dues at the time of preferring appeal or at the time of filing an application must be deposited which is a precondition for prefer­ring an appeal. Such precondition being imposed by the Parliament, who has the power to lake away any vested right by clear and unambiguous language, the same cannot be said to have taken away the right to protection of law.

 

Anisur Rahman © KM Zianl Haque vs Government of Bangladesh 12 BLC 22.

 

Section 41

 

The sole question to be investigated is one of possession. And next, if possession is found of the respondents whether they possessed independently or through judgment debtor. Learned Judge without any investigation passed the order holding that the applicant's respondents ascertained in the application that their property was wrongly included in the auction notice.

 

Rupali Bank Ltd vs Sheuli Akter Monil7BLC476

 

Section 41(2)

 

Due to non-fulfilment of the mandatory requirement of sub-section (2) of section 41 of the Ain no valid appeal is pending before this Court and, as such, the application filed for dismissing the appeal on the ground of maintainability has got substance for which the appeal is liable to be dismissed as not maintainable in law.

 

Sonali Food Products (Pvt) Ltd. vs Premier Bank Ltd 17 BLC 441.

 

Sections 42 and 44

 

There is a total bar in filing any revision against any inter­locutory order passed by the Artha Rin Adalat. All the decisions of the Appellate Division and this Division clearly focused on the said proposition of law. The revisions which are filed against interlocutory order of the Adalat are not accepted by now.

 

Mah-bubur Rahman vs District Judge, Bogra 17 BLC 601.

 

Section 47

 

The claim of Taka 5,09,340.50 becomes very high against the small loan amount of Taka 40,000 and it will create hardship to refund. So the amount of claim may be reduced according to section 47 of the Artha Rin Adalat Ain, 2003, which allows the Bank to set up claim of only the loan amount by adding not more than double the principle amount as interest irrespective of the contract.

 

Pubali Bank Ltd vs Farzana Begum 15 BLC 49.

 

Sections 47 and 50(2)

 

Keeping con­sistency with the section 50(2) of the Ain, this Court inclined to award simple interest at the rate of 12% per annum on the principal amount from the date of filing the suit till realization subject to maximum payable under section 47 of the Artha Rin Adalat Ain. The simple interest payable shall not exceed 200% of the original claim.

 

Pubali Bank Ltd vs Amin Iqbal Corporation 17 BLC 500

 

Section 50(2)

 

Non-recording of any direction regarding payment of interest from the date of filing of the suit till realization of the decretal amount in the judgment and decree by the Adalat does not go the affect the right of the decree holder for charging the payment of interest as provided under section 50 of the Ain.

 

Abdul Mantian @ Roufvs Bangladesh 17 BLC 350.

 

Sections 50 and 60

 

Section 50(3) of the Ain of 2003 gives the authority on appellate Court to waive the interest, during the period of pendency of the suit and appeal if it thinks just and proper. Because of fault and arbitrariness, the plaintiff bank suffered loss, if any, the defendants cannot be made liable for such loss. In view of such facts the plaintiff bank is not entitled to get interest during the pendency of the suit and appeal that is pendente lite interest.

 

Janata Bank vs Betka Poultry and Dairy Complex 16 BLC 665.

 

Section 57

 

Artha Rin Adalat can exercise its power under Section 57 of the Ain to rectify its own mistake by restoring possession to respondent No.6 in respect of the disputed land as the auction-purchaser by practising fraud upon the Adalat took possession of the land not sold in auction.

 

Md. Salim Hossain vs Artha Rin Adalat Munshigonj 17 BLC (AD) 154.

 

Section 60(3)

 

Under the provision of sub­section (3) of section 60 of the Ain the said proceedings shall be taken to be a pro­ceedings under the Artha Rin Adalat Ain, 2003. Therefore, the question raised can be decided at the trial of the suit and at the time of receiving evidence from the parties. Besides, the impugned order was not amen­able to the writ jurisdiction as the order was passed under the repealed Artha Rin Adalat Ain, 1990.

 

Zahidi Millah vs Artha Rin Adalat, Khulna 11 BLC 238.

 

Section 60(3)

 

It appears that the Execution Cases were filed by the decree holder bank to execute the decree before the Adalat constituted under the Ain, 1990 and thereafter, the Artha Rin Adalat Ain, 2003 having come into force on 1-5-2003 upon repealing the Ain of 1990 in which the said execution cases automatically transferred to the Artha Rin Adalat established under the Ain, 2003 under the provision of section 60(3) of the said Ain. It also appears that the Adalat rejected the applications for dismissing the execution cases on the ground that since there is no indication in the Ain, 2003 for disposal of the execution cases filed under the Ain, 1990 the Code of Civil Procedure shall be applicable relating to those execution cases. On an analysis of the impugned orders vis-a-vis the law, it appears that there is no d no flaw in the reasoning of the Adalat or any ground to assail the impugned orders which are based on proper appreciation of fact and law.

 

Mofiz Mia vs Artha Rin Adnlat 13 BLC 444.

586

BADC Employees' Service Regulations, 1990

Citation: 3 LNJ 170

Case Year: 1900

Subject: Service Rules

Delivery Date: 2018-04-01

BADC Employees' Service Regulations, 1990

Regulation 47

Refusal of BADC to treat the period of absence of the dismissed employee (superannuated), acquitted on benefit of doubt in the connected criminal case, as time spent on duty and not to allow him his arrear salary and benefits, is illegal. Mst. Razia Akhter Vs. Bangladesh and others, (Spl. Original), 3 LNJ  170

Regulation 50

Departmental authority is within its powers to proceed with disciplinary proceedings side by side with criminal proceedings grounded on the same facts. But the power to proceed with disciplinary proceedings simultaneously cannot be construed to mean that they can award punishment proposed to be given without waiting for the decision of the court. Mst. Razia Akhter Vs. Bangladesh and others, (Spl. Original), 3 LNJ 170

587

Bangabandhu Sheikh Mujib Medical University Act, 1998

Citation: 11 BLC 563

Case Year: 1998

Subject: Bangabandhu Sheikh Mujib Medical University

Delivery Date: 2018-05-29

Bangabandhu Sheikh Mujib Medical University Act, 1998

[I of 1998]

 

Section 14(12)

 

There is nothing before the Court to show that the Vice-Chancellor formed an opinion that an urgent situation was prevailing and that a decision regarding the appointment of respondent No.6 is to be taken or the impugned Memo is to be issued on an urgent basis without taking the Syndicate's approval. In the absence of such opinion as to the necessity of the issuance of the impugned Memo on an urgent basis it cannot be said that an urgent situation was existing requiring the invoking of section 14(12) of the BSMMU Act, 1998.

 

Dr Kanak Kanti Barua vs Bangladesh Sheikh Mujib Medical University 11 BLC 563.

588

Bangabandhu Sheikh Mujib Medical University (BSMMU) Service Rules

Citation: 11 BLC 563

Subject: Bangabandhu Sheikh Mujib Medical University (BSMMU) Service Rules

Delivery Date: 2018-05-29

Bangabandhu Sheikh Mujib

Medical University (BSMMU)

Service Rules

 

Rule 5 (Kha) (Chha)

 

There is nothing before the Court to show that the Vice-Chancellor formed an opinion that an urgent situation was prevailing and that a decision regarding the appointment of respondent No.6 is to be taken or the impugned Memo is to be issued on an urgent basis without taking the Syndicate's approval. In the absence of such opinion as to the necessity of the issuance of the impugned Memo on an urgent basis it cannot be said that an urgent situation was existing requiring the invoking of section 14(12) of the BSMMU Act, 1998.

 

Dr Kanak Kanti Banta vs Bangladesh Sheikh Mujib Medical University 11 BLC 563.

589

Bangladesh Abandoned Property (Control, Management andDisposal) Order, 1972

Citation: 11 BLC (AD) 218, 12 BLC (AD) 57, 13 BLC 125, 13 BLC 247, 14 BLC (AD)19, 15 BLC (AD) 179, 15 BLC (AD) 200, 13 BLC 247, 11 BLC (AD) 218, 13 BLC 247

Case Year: 1972

Subject: Bangladesh Abandoned Property (Control, Management andDisposal)

Delivery Date: 2018-05-29

Bangladesh Abandoned Property

(Control, Management andDisposal) Order, 1972

 

[po 16 of 1972]

 

Article 2

 

Undoubtedly, the Court of Settlement was within its jurisdiction in directing the respondent to produce the agreement and the lease deed before the said Court for the purpose of making decision on the question as to whether at the relevant time whereabouts of Mr SM Hasan were known and that he was in Bangladesh. Since those facts are in the negative i.e. Mr SM Hasan's whereabouts were not known and that he was not in Bangladesh, after emer­gence of Bangladesh and, as such, undoub­tedly the property in question on the promul­gation of PO 16 of 1972 assumed the character of abandoned building and in that background of the fact the property was legally listed in the list of abandoned buildings.

 

Government of the People's Republic of Bangladesh vs Abdul Walied Talukder 11 BLC (AD) 218.

 

Article 2

 

The petitioner deserves sympathetic and preferential treatment from the concerned authority and so, in case of transfer of the Plot No.4, the authority con­cerned should give the petitioner preferable treatment and in the meantime the posses­sion of the petitioner in the plot No.4, through their tenant, should not also be disturbed till transfer of the same.

 

Sadlwran Bima Corporation vs First Court of Settlement 12 BLC (AD) 57.

 

Article 2

 

The Court of fact on due consideration of the materials placed before it held that claimant of the property failed to establish that whereabouts of Asgar AH, the owner, were known after emergence of Bangladesh, particularly on February 28, 1972 when President's Order 16 of 1972 was promulgated, was not established and that said Asgar Ali managed, supervised and possessed the property in question after emergence of Bangladesh and that by Akbar Ali till 1979. The High Court Division was not in error in discharging the Rule.

 

Fazlur Rahman vs Clwirman, First Court of Settlement 13 BLC 125.

 

Article 2

 

It is admitted that on that date (28-2-1972) the original owner Abdul Kaiyum did not possess the case property in person. The assertion that Md Atiqullah got delivery of possession of the case properly in part performance of the contract on 27-12-1970 cannot be brushed aside at all in the facts and circumstances of the case. In view of the agreement for sale dated 27-12-1970 it appears that as an agent of the original owner Abdul Kaiyum, Md Atiqullah possessed the case property also on 28-2-1972 though he acquired valid title thereto in the year 1984 on registration of the kabala through the court. That being so, the claim of the petitioners that on the date of promulgation of the PO No. 16 of 1972 (28-2-1971) the case property was not left abandoned by the original owner Abdul Kaiyum as to attract the mischief of article 2 thereof but they were in possession of the case property on that date has substance moreso, when the Government could not produce any material to prove its possession of the case property at any point of time.

 

Mahmuda Begum vs Court of Settlement 13 BLC 247.

 

Article 2

 

Even in the application filed under section 7 of the Ordinance 1985 there is no assertion that on 28-2-1972 Abdus Salam used to live in this country and occupy or manage the building and he did never leave the country and he used to live in such and such place and further, the date of his death was also not given and further, though the case of the petitioner is that he purchased the case property from the wife and minor children of Abdus Salam on 9-4-1973, no deed of agreement has been filed in support of the above claim accordingly, the findings of the Court of Settlement that the petitioner acquired title and that the case property was illegally included in the list of abandoned buildings is not founded on evidence and herefore perverse.

 

Abu Taker vs Bangladesh 14 BLC (AD)19.

 

Article 2

 

The Settlement Court correctly applied the provision of law i.e. Article 2 of the PO No.16 of 1972 as there was absolutely no iota of evidence or material produced by the petitioner to show that Abdur Rahman, the alleged vendor of the respondent was present in Bangladesh or his whereabouts were known on 28-2-1972 and, as such, the alleged kabala of the respondent dated 24-4-1974 was by a fictitious non­existent Abdur Rahman by impersonation.

 

Bangladesh vs Mohiuddin 15 BLC (AD) 179.

 

Article 2(1)

 

It appears that the pro­perty in question did not answer to the definition of "abandoned property" as defined in Article 2(1) of the President's Order No. 16 of 1972.

 

Zahirul Hoque Chokder vs Bangladesh 12 BLC 410.

 

Articles 2 and 4

 

It appears that admittedly the property has been listed as an abandoned property. Thus, the onus lies upon the appellant to rebut the presumption provided in subsection (2) of Section 5 that the same was not an abandoned property. No oral evidence has been adduced before the settlement Court to prove that on 28-2-1972 when President's Order No. 16 of 1972 was promulgated the original lessee, Rafi Ahmed Fidai had been present in Bangladesh or his whereabouts were known or that he did not cease to occupy, supervise or manage in person the house in question.

 

 Ambia Khatun vs Bangladesh 15 BLC (AD) 200,

 

Article 7

 

It is clear that the govern­ment did not take over possession of the case property as an abandoned property in accordance with the provisions of Article 7 of the PO No. 16 of 1972 inasmuch as Anne-xures-B, F(l), H and H(l) belie the case of the government on the question of taking over possession of the case property as an abandoned property.

 

Mahmuda Begum vs Court of Settlement 13 BLC 247.

 

Article 7(3)

 

The petitioner did not lead any evidence to substantiate his conten­tion as to non service of notice since it is not seen from the judgment of the Court of Settlement that any such contention was raised and the respondent made attempt to establish his claim of non-service of notice in listing the property as abandoned property. From the judgment of the Court of Settlement it is seen that the respondent miserably failed to establish before the said Court that the building in question is not an abandoned property.

 

Government of the People's Republic of Bangladesh vs Abdul Waned Talukder 11 BLC (AD) 218.

 

Article 10

 

In the instant Rule, agree­ment for sale is dated 27-12-1970 i.e. prior to 25th March, 1971, and considering from this standpoint it appears that the said agreement dated 27-12-1970 does not come within the purview of Article 10 of the PO No. 16 of 1972 unconditionally but subject to the terms and conditions of the agreement for sale. The provisions of the said Order do not confer any power upon the Government, apart from Article 10, to ignore an agreement entered into after 25-3-1971 and eject the occupant lawfully in possession of the abandoned property.

 

Mahmuda Begum vs Court of Settlement 13 BLC 247.

590

Bangladesh Agricultural Research Institute Employees Service Regulation, 1990

Citation: 14 BLT(AD)01

Subject: Bangladesh Agricultural Research Institute Employees

Delivery Date: 1970-01-01

 

Bangladesh Agricultural Research Institute Employees Service Regulation, 1990

Regulation 43(8)

Computation as period of limitation

On reading the provision of Regulation 43(8) of the regulations we are of the opinion that day on which show cause / charge sheet was communicated to a delinquent employee of an organization. herein the appellant, the said date is to be excluded since the same is in consonant with the rules of computation of period either for the purpose of limitation of legal proceeding or enquiry before the Tribunal or for the departmental enquiry. The language of the Regulation 43(8) shows that the day on which show cause - charge sheet was submitted the same is to be excluded.

Md. Ashequr Rahman Vs. Bangladesh & Ors. 14 BLT(AD)01


 

591

Bangladesh Bank Order, 1972

Citation: 17 BLC 326, 16 BLC 673

Case Year: 1972

Subject: Bangladesh Bank

Delivery Date: 2018-05-30

Bangladesh Bank Order, 1972

[PO 127 of 1972]

 

Article 42(b)

 

If a person in his own name or in the name of any institution is favoured with any advance or loan which has become overdue according to the definition of defaulter borrower in Act, 1991 read with Bangladesh Bank Order, 1972, becomes a defaulter borrower. Whenever a Financial Institution sends the name of its' defaulters to Bangladesh Bank at once it classifies the names of incumbent in the CIB list. It is a continuing and ongoing process and there is no escape from that.

 

SA Telecom System Ltd. vs Governor, Bangladesh Bank 17 BLC 326.

 

Articles 82(2)(e)

 

The petitioner has been claiming promotion since 2001 according to the Circular No. 22 of 1979, which being made in exercise of the power under Article 82(2)(e) of the Bangladesh Bank Order, is a law protected under Article 47(2) of the Constitu-tion, there can be no waiver against the same. The respondent No. 2 gave an undertaking that if the petitioner would succeed in writ petition he would given promotion as per the order of this Court. Now the petitioner has succeeded in this writ petition, respondent No. 2 is rather barred by promissory estoppel from resiling from its undertaking.

 

Sukamal Sinha Choudhury vs Government of Bangladesh 16 BLC 673.

592

Bangladesh Biman Corporation Employees (Service) Regulations, 1979

Citation: 1, MLR (1996) (HC) 73, 5 MLR(2000)(AD) 258, 2, MLR(1997) (AD) 71, 3, MLR(1998) (HC) 185, 1, MLR (1996) (HC) 295, 7 BLD (AD) 192

Case Year: 1979

Subject: Bangladesh Biman Corporation Employees

Delivery Date: 2018-04-01

Bangladesh Biman Corporation Employees

(Service) Regulations, 1979

 

Regulation 11— Age of retirent—

 

The age limit of the petitioner to remain in seivice till attaining 57 years cannot be reduced or curtailed specially when such right of an employee is accrued under the law when he was appointed. Regulation 11 as amended by S.R.O. No. 56 AL/84 dated 5-2-1984 reducing age limit of retirement of Cabin Crew from 57 to 35 years without corresponding amendment of rule 3 and 4 of Bangladesh Biman Seivice (Pension and Gratuity), Rules, 1988 being discriminatory and violative of article 27 and 28 of the Constitution is void and of no legal effect.

 

Dalia Parueen Vs. Bangladesh Biman Corporation and another. 1, MLR (1996) (HC) 73.

 

Regulation 11A(2)— Public Servants (Retirement) Act, 1974- Section 9(2)- Power of the Government to retire Biman Employee-Defence Service officers (Appoint­ment and Fixation of Seniority in Civil Post) Rules 1983

 

An employee of Bangladesh Biman Corporation is a Public Servant within the meaning of section 2(d) of the Public Servants (Retirement) Act, 1974. A Defence officer's past service is counted .towards his seniority on appointment in civil post. Therefore the Public Servants (Retirement) Act, 1974 is applicable to such an employee after completion of 25 years seivice including his past defence service.

 

Bangladesh Biman Corporation Vs. Lt Col. (Reid.) Md. JoynuL Abedin & others- 5 MLR(2000)(AD) 258.

 

Regulation 18(C)- Determination of seniority of the recruits under one advertisement and under same recruitment examinations but undergoing training in batches one after another due to logistic constraints

 

Where the employees are recruited in pursuance of one advertisement under the same written and viva voce. examinations and where the results of the training of such recruits are counted towards determining their inter-se-seniority, the infer se-seniority of such employees should be determined on the basis of the merit taken together of the written examination, viva voce test and the result of the training regardless of whether such recruits are given training at a time or in batches at different time due to logistic problem.

 

Aminul Hoque and others Vs. Rejiqul Hassan and others. 2, MLR(1997) (AD) 71.

 

Regulation 24 Foregoing promotion does not exempt from transfer

 

An employee of Bangladesh Biman is under the legal obligation to serve in any station in Bangladesh and abroad as required by regulation 24 of the Regulations, 1979. That the writ petitioner has forgone his right of promotion by itself does not exempt him from being transferred elsewhere for administrative reasons. The order of transfer of the petitioner being not one offending any of the fundamental rights, does not call for any interference under the writ jurisdiction.

 

KM. Nurul Islam us. Secretary, Ministry Civil Aviation and Tourism and others 3, MLR(1998) (HC) 185.

 

Rule 4— Voluntary retirement— Non-impleading of Biman Corporation as party not fatal—

An employee of Bangladesh Biman Corporation has option to retire on completion of 25 years service by giving 30 days prior notice of the intention and the authority is bound to allow such voluntary retirement. An application for optional retirement cannot be refused on ground of vague and wild allegation and when no enquiry has been commenced. When the Managing Director is made party mere non-impleading of the Bangladesh Biman Corporation being of technical nature will not frustrate the purpose of the writ petition.

 

M. Rashiduzzaman Vs. Gouernment of  Bangladesh and others. 1, MLR (1996) (HC) 295.

 

Section 14 and 31 (d)- Bangladesh Biman Corporation Employees (Service) Regulations, 1979- Regulation 18 and 19

 

Interpretation of statute— In case of conflict parent law shall prevail over subordinate legislation.

Classification of "existing employees" and "new entrants" Fixation of seniority Majority view— Per Shahabuddin Ahmed-J. B.H. Chowdhury J and M.H. Rahaman-J. concurring with him.

 

The Ordinance XIX of 1977 was promulgated in 1977 with a provision, for making appointments of officers and employees of the Corporation. In exercise of power conferred by article 30, the Biman Corporation has made the Regulations in December 1979 and it came into force from the date. The respondents having been appointed earlier than the Regulations, that is, in June 1978 cannot be brought into the class of "new entrants" as referred to in Rule 18(a) for the purpose of determination of seniority unless the Regulations were given effect from the date of such appointment or from the date of the Ordinance. "Existing employees" therefore mean those employees who were in the Corporation's service when the Regulations were made and published. The employees who are appointed after the Regulations came into force, are the 'new entrants'.

 

Minority view— F.K. Fazle Munim— C.J. gave dissenting judgment. A.T.M. Afzal- J concurring with him.

 

The Regulations cannot in the absence of such classification in the Ordinance divide the employees into two categories, such as, 'new entrants' and "existing employees'. It is only the parent Act i.e. the Ordinance which must provide the service structure of the Corporation's' employees. Provisions of the Regulation 18(a) and 19 must be constructed with reference to section 14 and 31(d) of the Ordinance which, by their terms, created the demarcation between the two groups of employees, namely, those employees of the Biman who stood transferred to the Corporation on the date of the coming into operation of the Ordinance and those employees who will be appointed after the Corporation came into force.

 

Parent Law shall prevail

 

There is no dispute that provisions of a subordinate legislation must be in conformity with those of its parent legislation and in the case of any conflict the provisions of the parent law shall prevail. In this case the Ordinance is the parent law and the Regulations are its subordinate legislations and if there is any vacuum in the subordinate legislation in respect of any matter, but about which specific provision has been made in the parent law, then the provision of the parent law shall be read into the subordinate legislation.

 

Bangladesh Biman Corporation Vs. Syed Aftab AH and others- 7 BLD (AD) 192.

593

Bangladesh Biman Corporation Ordinance, 1977

Citation: 13 BLC 541, 15 BLC 770, 16 BLC 381

Case Year: 1977

Subject: Bangladesh Biman Corporation Ordinance, 1977

Delivery Date: 2018-06-03

Bangladesh Biman Corporation Ordinance, 1977

(xix of 1977)

 

Section 30

 

In the present case, the Bangladesh Biman Corporation Ordinance, 1977 (XIX of 1977) (in short, the Ordinance) is the parent enactment. Having gone through the Ordinance, in general, and section 30 thereof, in particular, there is no such power of giving retrospective effect. Since both the petitioners joined the service of Biman prior to insertion of Regulation 11A on 5-2-1984 by way of amendment, it shall not be applicable to them. On this score alone, the orders retiring the petitioners from service are illegal and without jurisdiction.

 

Emdad Hossain vs Bangladesh Biman Corporation 13 BLC 541.

 

Sections 14 and 15

 

It is well-settled that malafides goes to the root of jurisdiction and if the impugned action is rnalafide, the alternative remedy provided by the statute need not be availed of. Neither the Building Construction Act, 1952 nor the iftwt ttswi ito, 1995 expressly or impliedly excludes the operation of the principle of "Audi AUeram Partem". As Dr SA Mahmood's right to enjoyment of the case plot was adversely affected by the impugned Memos of the Environment Directorate and the RAJUK; in all fairness and reasonableness, he ought not to have been condemned unheard. To all intents and purposes, in our assessment, the Environment Directorate and the RAJUK's impugned Memos dated 26-8-2009 and 7-9-2009 respectively are unreasonable in the Wednesbury sense. As the said Memos Dated 26-8-2009 and 7-9-2009 are malafide and without jurisdiction, Dr SA Mahmood was not required to approach the Appellate Authority either under Section 14 of the tfowi 15W1 stfcfl, ifcfcft or under Section 15 of the Building Construction Act, 1952 and he rightly approached the High Court Division directly under Article 102 of the Constitution.

 

Unique Hotel Resorts vs Bangladesh 15 BLC 770.

 

Section 12

 

The land which has been leased out is absolutely sea bed which can neither be leased out nor anyone can claim ownership therein. Since the petitioners have apparently failed to produce any documen­tary evidence in support of their title the peti­tioners have no locus-standi even to challenge the authority of the respondent No. 1 to lease out the same as khas land which is alleged to

be the product of accretion.

 

Nael Ali vs Bangladesh 16 BLC 381.

594

Bangladesh (Freedom Fighters) Welfare Foundation Order, 1972

Citation: 12 BLC 616, 16 BLC 729

Case Year: 1972

Subject: Bangladesh (Freedom Fighters) Welfare

Delivery Date: 2018-06-03

Bangladesh (Freedom Fighters) Welfare Foundation Order, 1972

[PO 94 of 1972]

 

Article 5—"Rastrio Sammani Bhata" of the freedom fighters—

 

After examining all required documents of the petitioners and in compliance of the required legal formalities as enshrined in Regulation 1984, the peti­tioners were finally granted "Rastrio Sammani Bhata" under which they were  monthly basis. It appears that the petitioners were listed as disabled Freedom Fighters with effect from January, 1999 as per the decision of the 60th meeting of the Board of Trustee of the Trust. The impugned memos issued by the respondent No. 3 curtailing/ reducing the "Rastrio Sammani Bhata" of the petitioners suffer from legal infirmities which call for interference. Thus the Rule having merit succeeds. The respondents are directed to cause payment of "Rastrio Sammani Bhata" to the respective petitioners fixed at the time of award of the "Rastrio Sammani Bhata" in January, 1999.

 

Shamsuddoha vs Bangladesh 12 BLC 616

 

Bangladesh Freedom Fighters Welfare Trust Regulation, 1984 "Rastrio Sammani Bhata" of the freedom fighters

 

The petitioners were finally granted "Rastrio Sammani Bhata" under which they were allowed to receive a sum of Taka 2004 each on monthly basis. It appears that the petitioners were listed as disabled Freedom Fighters with effect from January, 1999 as per the decision of the 60th meeting of the Board of Trustee of the Trust. The impugned memos issued by the respondent No. 3 curtailing/reducing the "Rastrio Sam­mani Bhata" of the petitioners suffer from legal infirmities which call for interference. Thus the Rule having merit succeeds. The respondents are directed to cause payment of "Rastrio Sammani Bhata" to the respective petitioners fixed at the time of award of the"Rastrio Sammani Bhata" in January, 1999.

 

ShamsiLddoha vs Bangladesh 12 BLC 616

 

Regulation 3(Ga)

 

The impugned Memo dated 28-10-2003 reducing to Taka 600 of the allowance (Rastrio Sammani Bhata) per month instead of Taka 2004 as fixed in January, 1999 by the Trust to the disabled Freedom Fighters is discriminatory and is declared to have been passed without lawful authority.

 

Golam Sarwar vs Bangladesh 16 BLC 729.

595

Bangladesh Freedom Fighters' Welfare Trust (Head Office) Service Rules, 1979

 

 

Rule 7(1)-

Termination of service-Under the general rule the junior-most person of the same grade should be retrenched or terminated first. In order to determine seniority the date of appointment/promotion of all officers working in Bangladesh Government and Local Authority Lands and Buildings (Recovery of Possession) Order-Bangladesh Homoeopathic Practitioners Ordinance-Bangladesh House Building Finance Corporation Order the same grade should be considered. The principle of last come first out rule should have been followed before terminating the service of the petitioner.

Shamsuddin Ahmed vs Mukti Joddha Kallyan Trust 44 DLR 524.

596

Bangladesh Government and Local Authority Lands & Buildings (Recovery of Possession) Ordinance, 1970

Case Year: 1970

Subject: Bangladesh Government and Local Authority Lands & Buildings (Recovery of Possession)

Delivery Date: 2018-06-04

Bangladesh Government and Local

Authority Lands & Buildings

(Recovery of Possession) Ordinance, 1970

[XXIV of 1970]

  

Section 5

 

The only provision for eviction of the slum dwellers is the provision of section 5 of the Bangladesh Government Lands and Buildings (recovery of possession) Ordinance, 1970 by serving notice asking them to vacate the premises in occupation within the period of thirty days from the date of service thereof, but under the prevailing circumstances of the slum dwellers, the notice that has been contemplated is not possible to be served upon them due to their floating nature and having no permanent hut as they live mostly in basti and having no fixed number and address.

 

Bangladesh Legal Aid and Services Trust vs Bangladesh 384.

597

Bangladesh House Building Finance Corporation, 1973

Citation: 16 BLC 1, 16 BLC 239

Case Year: 1973

Subject: Bangladesh House Building Finance

Delivery Date: 2018-06-04

Bangladesh House Building Finance Corporation, 1973

[PO 7 of 1973]

 

Article 27

 

On the question of removal the name of Bangladesh House Building Finance Corporation from the definition clause of Artha Rin Adalat Ain, 2003, it is found that the Appellate Division pronoun­ced the judgment on 22-7-1996 i.e. long before coming into force of Artha Rin Adalat Ain, 2003. It is very unfortunate that Ministry of Law, Justice and Parliamentary Affairs still did not act as per the decision of 49 DLR (AD) 80 and 47 DLR 158 thereby causes hindrance in the matter of administration of Justice. It is expected that in no time Ministry of Law, Justice and Parliamentary Affairs will act as per the aforesaid decisions and delete House Building Finance Corporation from section 2 Ka(4) of Artha Rin Adalat Ain, 2003.

 

Begum Shirin Akhtar vs Bangladesh HBFC 16 BLC 1

 

Article 27

 

The learned District Judge surprisingly transferred the case to the Court of the Special District Judge for which the petitioner moved an application under section 24 read with section 151 of the Code before the District Judge, for withdrawing the case to his own Court from the Court of the Special District Judge which was rejected by the impugned order. Assuming that the Special District Judge is the District Judge even in that case the Miscellaneous case is to be heard by him in the capacity of the District Judge in accordance with the Article 27 of PO No VII of 1973. Accordingly, the Miscella­neous case was transferred to the Court of District Judge from the Court of Special District Judge.

 

Mortimzzaman vs Bangladesh House Building Finance Corporation 16 BLC 239.

598

Bangladesh Judicial Service (Posting, Promotion/ Leave Grant, Control, Discipline) Rules, 2007

Citation: 15 BLC (AD) 25

Case Year: 2007

Subject: Bangladesh Judicial Service (Posting, Promotion/ Leave Grant, Control, Discipline)

Delivery Date: 2018-06-04

Bangladesh Judicial Service

(Posting, Promotion/ Leave Grant,

Control, Discipline) Rules, 2007

 

Rule 7

 

The issue of reservation of posts for judicial officers including the post of Law Secretary has passed the test of Masder Hossain's case and cannot now be reopened and the High Court Division in the aforesaid Shahdin Malik case held that the Nitimala of 2001 has the force of law which has been upheld by this Division. The parliament at the same time can adjudicate certain disputes and hold the power to enforce its own privileges and to punish those who offend against them.

 

Bangladesh vs Md Aftabuddin (Retd. District and Sessions Judge) 15 BLC (AD) 25

599

Bangladesh Jute Mills Corporation Employees Service Regulations, 1990

Citation: 12 BLC 57

Case Year: 1990

Subject: Bangladesh Jute Mills Corporation Employees Service

Delivery Date: 2018-06-04

Bangladesh Jute Mills Corporation

Employees Service Regulations, 1990

 

Regulation 43(8)

 

The Service Rules 43(8) of the Corporation clearly provides that, if the authority fails to take final decision against a person within 180 working days he will be considered to be exonerated from charges automatically. Both the courts below concurrently found that the proceeding was not concluded within stipulated time provided.

 

Bangladesh Jute Mills Corporation vs SM Fakhrul Islam Chowdhury 12 BLC 57.

600

Bangladesh Jute Research Institute Act 1974

Citation: 6 BLC 175

Case Year: 1974

Subject: Bangladesh Jute Research Institute

Delivery Date: 2018-05-03

Bangladesh Jute Research

Institute Act 1974

(XII of 1974)

 

Section 19

 

In view of section 19 of Bangladesh Jute Research Institute Act, 1974 the office order dated 13-3-95 issued by the Ministry of Agriculture deleting the mandatory provision of Regulation 43(8) of Bangladesh Jute Research Institute Employment Regulation, 1990 in taking final decision in the matter of any proceeding against an accused person in 180 working days after communicating the charge levelled against him, the so-called amendment in Regulation 43(8) by such office order has no legal basis and hence the petitioner having not been dealt with within 180 working days is deemed to be innocent and he is exonerated from the charge levelled against   him.

 

ASM Seraj-uddin vs Bangladesh, and others 6 BLC 175.

601

Bangladesh Jute Research Institute (Employees) Employment Rules, 1990

Citation: 13 BLC 729

Case Year: 1990

Subject: Bangladesh Jute Research Institute (Employees) Employment

Delivery Date: 2018-06-04

Bangladesh Jute Research Institute

(Employees) Employment

Rules, 1990

 

Rule 43(8)

 

In the provision of Rule 43(8) of Bangladesh Jute Research Institute (Employees) Employment Rule, 1990 it is stipulated that unless the proceedings are completed within the stated 180 working days, then the persons responsible for causing the delay are to be proceeded against. Since a consequence has been stipulated for non-compliance of the said Rule it is indicative that the Rule is mandatory and not directory. The authority having failed to complete the departmental proceedings within the said stipulated period the petitioner will be deemed to be exonerated from the charge brought against him.

 

 

Dr. Kazi Monowar Hossain vs Bangladesh 13 BLC 729.

602

Bangladesh Krishi Bank Order, 1973

Citation: 12 BLC (AD) 229

Case Year: 1973

Subject: Bangladesh Krishi Bank

Delivery Date: 2018-06-04

Bangladesh Krishi Bank Order, 1973

[PO 27 of 1973]

 

Article 9

 

Since the Managing Director was the appointing and promoting authority of the respondent No. 1, a Deputy General Manager, definitely the Managing Director was also the competent authority to issue the order of his compulsory retirement.

 

Bangladesh Krishi Bank vs AFM Fariduddin 12 BLC (AD) 229

603

Bangladesh Labour Law, 2006

Citation: 16 BLC 633, 16 BLC 892, 15 BLC 761

Case Year: 2006

Subject: Bangladesh Labour Law

Delivery Date: 2018-06-04

Bangladesh Labour Law, 2006

(XLII of 2006)

 

Sections l(4)(Ka) and 214(1)

 

Titas Gas Transmission and Distribution Com­pany, respondent No. 3 is absolutely owned by the Government and section 1(4) (Ka) of the Bangladesh Labour Act, 2006 declares that the Act shall not apply to the Govern­ment or any office under the Government or to any labour/worker thereof and at the same time, the Labour Court is established under Section 214 (1) of the Act. Therefore, the Labour Court has no jurisdiction to entertain and adjudicate any dispute involving the Government or any office under the Government or any worker/ labour thereof.

 

Jashim Uddin vs Ministry of Energy and Mineral Resources Division 16 BLC 633.

 

Sections 33, 307 and 210

 

The two notices were served upon the petitioners through a Legal Aid Organisation namely, BLAST but such notices cannot be treated as grievance notices as provided by section 33 of the Bangladesh Labour Act. The facts of the present case do not attract the provisions of section 307 or section 310 of Bangladesh Labour Act and hence the filing of criminal case is illegal and is liable to be quashed.

 

Kazi Rokanuddin Ahmed vs Chairman, 1st Labour Court 16 BLC 892.

 

Section 33(6)

 

The complaint cases having been filed under section 25 of the Employment of Labour (Standing Order) Act of 1965 and the judgment passed in such cases is final against which appeal under section 33(6) of the Bangladesh Labour Act, 2006 is impermissible.

 

Iqbal Hossain vs Chair­man, Labour Appellate Tribunal 16 BLC 889.

 

Section 28

 

For the purpose of retirement of the workers working under the Corporation specific provision has been laid down under Section 14A of the Public Corpo­rations (Management Co-ordination) Ordi­nance, 1986 and, as such, section 14A Public Corporations (Management Co-ordination) Ordinance, 1986 is applicable for the workers and employees working under the Corpora­tion and, as such, Section 28 of the Bangla­desh Labour Law, 2006 is not applicable for the retirement of the workers working under the Public Corporation. Service Rules of the Corporation will apply upon all the workers under the Corporation. The petitioner being a worker under the Corporation is entitled to serve to the Corporation up to 60th year of his age and, as such,, we find that the impugned order issued by the respondent No. 4 under Memo No. UFFL/Admin-02/ 16/1987 dated 2-4-2008 is liable to be declared to have been passed without lawful authority and is of no legal effect.

 

AH Azam vs Bangladesh 15 BLC 761.

604

Bangladesh Land Holding Limitation Order, 1972

 

 

Bangladesh Land Holding Limitation Order, 1972

 

Article 3-

Pre-emption under section 26F of the Bengal Tenancy Act (VIII of 1885)-Whether the same can be allowed in favour of the pre­emptor applicant who admitedly owns more than 100 bighas of land exceeding the land ceiling prescribed by PO No. 98 of 1972-The question of land holding limitation upto 100 bighas of land does not arise as the Munsifs order was passed in 1967 when there was no law limiting and holding to 100 bighas.

Azizur Rahman vs Bhayetullah 40 DLR (AD) 224.

605

Bangladesh Legal Practitioners and Bar Council Order, 1972

Citation: 17 BLC 745,

Case Year: 1972

Subject: Bangladesh Legal Practitioners and Bar Council

Delivery Date: 2018-06-07

Bangladesh Legal Practitioners and Bar Council Order, 1972

[PO 46 of 1972]

 

Article 10(c)

 

It is the duty of the Bar Council to safeguard the rights, privileges and interest of Advocates on its roll. But instead of so doing, the Bar Council has chosen to curtail the right of practice of the former Judicial Officers in the Sub-ordinate Courts affecting their privileges and interest by way of insertion of the proviso to Ride 65A (ii) of the Rules of 1972 by way of an amendment.

 

AKM Fazlul Karim vs Bangladesh 17 BLC 745.

 

Article 22

 

Article 22 does not contem­plate any embargo or restriction on practice by the ex-Judicial Officers of Pakistan. But Rule 7 of the Bar Council of India Rules framed under the Advocates Act, 1961 provides for a time-bound embargo on the practice of Judicial Officer for 2 (two) years in the area in which he exercised jurisdiction for a period of 3 years before his retirement or otherwise ceasing to be in service. In India, this restriction appears to be a very limited and qualified restriction.

 

AKM Fazlul Karim vs Bangladesh 17 BLC 745

606

Bangladesh (Legal Proceedings) Order, 1972

Citation: 12 BLC (AD) 18

Case Year: 1972

Subject: Bangladesh (Legal Proceedings)

Delivery Date: 2018-06-07

Bangladesh (Legal Proceedings) Order, 1972

[po 12 of 1972]

 

Article 4

 

In the instant case it is apparent that plaintiffs claim of redemption did not become barred by limitation during the period as mentioned in Article 4 of the Order. The plaintiffs' right to file suit seeking redemption became timebarred on 26-12-1988. In that state of the matter the contention of the learned Advocate of the plaintiff-petitioners that plaintiffs' suit was not barred by limitation since he would get one year more from 26-12-1988 and thus the period for filing the suit seeking redemption was to expire in December, 1989 but the suit having been filed on 27th September, 1989 the same was not barred by limitation legally not well founded and sustainable.

 

Guljan Bibi  Md Fazlu Miah 12 BLC (AD) 18.

607

Bangladesh Petroleum Act, 1972

Citation: 11 BLC (AD) 57

Case Year: 1972

Subject: Bangladesh Petroleum

Delivery Date: 2018-06-07

Bangladesh Petroleum Act, 1972

[LXIX of 1974]

 

Sections 2(e) and 4(2)

 

The expression "Petroleum Operation" as found in section 4(2) and defined in section 2(e) of the said Act, 1974 has not stipulated for any kind of petroleum agreement with the Government or the Bangladesh Petroleum Corporation as a pre-condition to importing such petroleum product. But such agreement is required to be in place at the time and in course of explo­ration, extraction of the Petroleum Product, its development, exploitation, production, refining, processing or marketing. In other words, once the Petroleum product is found inside the country on import at the instance of anyone except the Government or the Bangladesh Petroleum Corporation, Petro­leum agreement is a condition precedent to dealing with such product. In the circum­stances, the Customs as well as the National Board of Revenue acted without any lawful authority in passing the orders impugned in the writ petition refusing to discharge the consignment in question.

 

Bangladesh vs QC Petroleum Ltd 11 BLC (AD) 57.

608

BANGLADESH POWER DEVELOPMENT BOARD (EMPLOYEES) SERVICE RULES, 1982

Citation: 7 BLD (HCD) 61

Case Year: 1982

Subject: BANGLADESH POWER DEVELOPMENT BOARD

Delivery Date: 1970-01-01

 

 

BANGLADESH POWER DEVELOPMENT BOARD (EMPLOYEES) SERVICE RULES, 1982

 

Rule—21(b)

Whether non graduation is a bar for promotion to the post of Deputy Director—Deputy Directorship is non-selection post—Meritcum-seniority is the criterion for promotion to this. post—Up to the ranks of Superintending Engineer and Director promotion is subject to the examination and test provided for in the Rules, themselves—Promotions have not been made subject to possession of requisite academic qualifications for each post—Each employee claiming merit and seniority and passing examination and test can rise up to the ranks of Superintending Engineer and Director.

M. M. Ismail Vs. Bangladesh Power Development Board and others; 7 BLD (HCD) 61.

 

Power Board cannot use an extra legal document—Whether the Directory published in 1969 setting for the uniform standard of qualification to be followed at the time of appointment and promotion of the personnel of the erstwhile authority can be used. by the Power Board in the same manner as it used to do before the framing of the Rules in 1982— This directory is not a Rule or a Circular or an office order—It has never been formally adopted by the Power Board at any time nor it has any statutory force—The Power Board cannot use an extra legal document which it has not adopted after the framing of Rules in 1982.

M. M. Ismail Vs. Bangladesh Power Development Board and others; 7BLD (HCD) 61.

 

609

Bangladesh Service Rules

Citation: 17 BLC 646, 16 BLC 374, 11 BLC 401

Subject: Bangladesh Service Rules

Delivery Date: 2018-06-07

Bangladesh Service Rules

 

Part-I

 

Till resignation is accepted, the incumbent has the authority to express his willingness or desire to recall/withdraw the resignation letter filed earlier, but not subsequent thereto ie, not after the resigna­tion is accepted.

 

SM Humayun Kabir vs Bangladesh 17 BLC 646

 

Rule 9

 

In order to prevent manifest injustice from being perpetuated the entry of date of birth in the service book may be corrected, provided such correction stands the test of reasonableness.

 

Pragati Industries Ltd vs AKM Mafizur Rahman 16 BLC 374

 

Rule 42

 

Under Rule 42 of the Bangladesh Service Rules, Part-1 though the pay scale of the Jamadars started at Taka 2,500 -110 x 7 - 3,270 EB -120 x 11 - 4,590 but they crossed such scale and drawing their salary at the scale Tk. 2,850 - 130 - 3,760 EB 150 - 5,410 and, as such, the petitioner is entitled to pay protection of their pay as drawn by them before their promotion.

 

Shafijur Rahman vs Bangladeshis BLC 724.

 

Rule 300(a)

 

Till resignation is accepted, the incumbent has the authority to express his willingness or desire to recall/ withdraw the resignation letter filed earlier, but not subsequent thereto ie, not after the resignation is accepted.

 

SM Huinayun Kabir vs Bangladesh 17 BLC 646.

 

Rule 247

 

In view of the provisions of rule 247, it becomes clear that the penalty in respect of negligence of the petitioner in taking appropriate steps for misconduct of other employees took place much before the specified period and imposed beyond the date after retirement. The provisions are said to be still in force and holding the field against proceeding of a government retiree. In the case, the petitioner was suspended while he was on leave preparatory to retirement and departmental proceeding initiated. In such departmental proceeding, he was dismissed while he was already on retirement after completion of LPR. Appellate Division practically quashed such dismissal on the view that he was no more in government Service. For the persons aforesaid, imposition of penalty cannot be sustained in law. Impugned order imposing penalty for recovery of Taka 9,75,000 out of the gratuity of the petitioner is hereby declared to have been issued without lawful authority and, as such, of no legal effect and accordingly, quashed.

 

Horendmnath Gine vs Secretary, Ministry of Post and Telecommunication 11 BLC 401.

610

Bangladesh Shilpa Kin Sangstha (Direct Sale of Mortgaged Property), Rules, 1981

Citation: 11 BLC 172

Case Year: 1981

Subject: Bangladesh Shilpa Kin Sangstha (Direct Sale of Mortgaged Property)

Delivery Date: 2018-06-07

Bangladesh Shilpa Kin Sangstha

(Direct Sale of Mortgaged Property), Rules, 1981

 

Rules 9 and 10Possession of the Chi ttagong Board Mills Ltd was directed to be given in favour of the petitioner—

 

If the auction notice had specified the dues that was to be paid by the auction purchaser to BFIDC, it would be a different case altogether. But where there is no mention of any such dues, a claim, and that too rather belated, cannot be put up to prevent the petitioner from getting possession of the property which he purchased through a public auction. He has, acquired a legal right to the property and he cannot be deprived of the same on some technicalities, moreso when it is created by another agency of the Government. The language of Clause 10 expresses in clear and unequivocal terms that delivery of possession becomes mandatory once the sale certificate has been issued under clause 9.

 

Sirajuddin M Ashgar vs BSRS, represented by its General Manager and ors 11 BLC 172.

611

Bangladesh Shilpa Rin Sangstha Order, 1972

Citation: 11 MLR (2006) (AD) 329

Case Year: 1972

Subject: Bangladesh Shilpa Rin Sangstha

Delivery Date: 2018-03-11

Bangladesh Shilpa Rin Sangstha Order,

1972 (P.O. No.128 of 1972)

Article 33(5)Notice requiring payment of the money before passing decree is mandatory requirement of law—

District Judge is mandated under article 33(5) of the P.O. No.128 of 1972 to issue notice to the other party to make payment of the money in question before passing the decree which is the mandatory requirement of law. As the District Judge passed the decree without issue of such notice the decree so passed being illegal was set aside by the High Court Division which the apex court found perfectly justified. Bangladesh Shilpa Rin Sangstha BSRS   j Vs. Mrs. Monozvara Begum being dead her heir Mir Md. Iqbal Hossain and others 11 MLR (2006) (AD) 329.

612

Bangladesh T&T Manual Volume IV

Citation: 13 BLC (AD) 58

Subject: Bangladesh T&T Manual Volume IV

Delivery Date: 2018-06-07

Bangladesh T&T Manual Volume IV

 

Clause 32(E)

 

The accepted principle is that seniority may be one of the grounds along with service record, efficiency and other things. In the instant case, it is seen that opposite parties have been promoted to the post of Accounts Officer/Assistant Director (Accounts) on being recommended for promotion by the departmental promotion committee as well as by the Public Service Commission. In the background of the discussion, it appears that no error was com­mitted by the AAT in allowing the appeals and thereby in setting-aside the judgment and order of the AT.

 

Imdad Hossain vs Bangladesh 13 BLC (AD) 58.

613

Bangladesh Telecommunication Act, 2001

Citation: 11 BLC (AD) 37

Case Year: 2001

Subject: Bangladesh Telecommunication

Delivery Date: 2018-06-07

Bangladesh Telecommunication Act, 2001

[XVIU of 2001]

 

Sections 29, 30(2)m, 37(3)g, 89 and 90

 

In the instant case though apparently the Licence Agreement may be unobjectionable but, according to the Commission, the 'exclusivity clause' is injurious or illegal sealing off all the possibilities of expansion of telecommunication media through other agencies, thereby putting off all the activities of the Commission set for attaining the objects of the Commission and to promote the causes of National Telecommunication Policy, 1998. A contract or a term thereof may be invalid because its substance or purpose is contrary to public policy or because of its coercive method of procurement, which is contrary to public policy.

 

World Tel Bangladesh Ltd vs Ministry of Post and Telecommunications 11 BLC (AD) 37.

614

Bangladesh (Vesting of Property and Assets) Order, 1972

Citation: 11 BLC 280, 17 BLC 489

Case Year: 1972

Subject: Bangladesh (Vesting of Property and Assets)

Delivery Date: 2018-06-07

Bangladesh (Vesting of Property and Assets) Order, 1972

[PO 29 of 1972]

 

Article 2

 

It is not disputed that the suit property actually belongs to the government and the defendant No. 1, Mrs Inge Flatz, took lease from the government. After the death of the defendant No. 1, Inge Flatz and her constituted attorney, now the suit property is vested in the government in accordance with the provision of Bangladesh (vesting of properly and assets) Order, 1972 and Article 143 clause l(c) of the Constitution. As per Article 143 clause l(c) while there is no rightful owner of the property that rests in the government. In the present circum­stances, the suit land has been vested in the government.

 

M Manzur Ahmed vs Inge Flatz 11 BLC 280,

 

Article 2(1)

 

In view of Article 2(1) of the President's Order as amended by President's Order No. 134 of 1972 and in view of section 3(l)(a) of Act XLV of 1974 mutatis mutandis all enemy properties which were vested in the Deputy Custodian, Enemy Property (Lands and Buildings) under the provisions of the Defence of Pakistan Rules have been vested in the Government wilh effect from the 26th March, 1971 and it is, therefore, the Government which alone was competent to maintain the suit in respect of the disputed property, and as the suit having had not been brought by the Government the same is not maintainable in law.

 

ADC (Revenue) Noakhali vs Abdur Rob 17 BLC 489.

615

BANGLADESH WATER DEVELOPMENT BOARD (EMPLOYEES) SERVICE RULES, 1982

Citation: 7 BLD (HCD) 89

Case Year: 1982

Subject: BANGLADESH WATER DEVELOPMENT BOARD

Delivery Date: 1970-01-01

 

 

BANGLADESH WATER DEVELOPMENT BOARD (EMPLOYEES) SERVICE RULES, 1982

 

Rule—20(1)

Whether an employee shall be deemed to have been promoted to a higher post from the fact that he was allowed to hold a higher post for long 14 months without specification as to whether he was holding the same on a current charge or on an officiating basis—Promotion is an act of volition—A matter of positive action to be taken by the appropriate authority—It must be achieved by a process of selection, nomination and communication as per rules—One cannot import a legal fiction in a service matter.

Monirul Huq Vs. Government of the People’s Republic of Bangladesh, through the Secretary, Ministry of Irrigation, Water Development and Flood Control and others; 7 BLD (HCD) 89.

 

RuIe—33(e)

Status of an additional post—What happens to an employee when he is allowed to hold current charge of an additional post for a period exceeding three months—In the absence of any consequences provided for in the Rule the Court allow the status of a post to undergo a radical transformation—After the expiry of three months the additional post shall neither be deemed to be a substantive post nor that the employee holding current charge of an additional post shall be deemed to be promoted to the additional post.

Monirul Huq Vs. Government of the People’s Republic of Bangladesh, through the Secretary, Ministry of Irrigation, Water Development and Flood Control and others; 7 BLD (HCD) 89.

 

616

Bank Company Act, 1991

Citation: 17 BLC 326, 17 BLC 856, 13 BLC (AD) 118, 17 BLC 653, 12 BLC 105, 12 BLC 111, 12 BLC (AD) 87

Case Year: 1991

Subject: Bank Company

Delivery Date: 2018-06-07

Bank Company Act, 1991

[XIV of 1991]

 

Sections 3 and 5(KaKa)

 

The manner of investigation that has to be performed in terms of section 44 and 45 of the Act, shall also apply in case of investigation of Co­operative Bank and, as such, it is absolutely clear that Co-operative Bank and other financial institution does not include all the financial institution within the meaning of section 5 (Ka)(Ka) of Ain in other words all financial institutions under the Financial Act of 1993.

 

SA Telecom System Ltd. vs Governor, Bangladesh Bank 17 BLC 326.

 

Section 5(Ga Ga)

 

A guarantor is nota defaulter within the meaning of section 5(GaGa) of the Act. The guarantor is not included in the definition of  (loan defaulter) under section 5(GaGa) read with section 27 (KaKa) of the Act.

 

Mohsim Rahman vs Bangladesh 17 BLC 856.

 

Section 5(Ga Ga)

 

Since SABTNCOand Dutch Bangla Bank Ltd have already can­celled the bank guarantee executed by the writ petitioners-respondents-applicants and in view of the decision of Sonali Bank vide letter dated 22nd March, 2006 to withdraw Civil Petitions for Leave to Appeal Nos. 479-480 of 2005 the application for dismissing the Civil Petition for Leave to Appeal Nos. 479-480 of 2005 is allowed.

 

Sonali Bank vs Md Mostafa Kamal 13 BLC (AD) 118.

 

Section 27—CIB Report

 

Bangladesh Bank does not decide who is a loan defaulter and it is the concerned bank who gave loan to the borrower is to decide who is a loan defaulter and send list of such loan defaulter to the Bangladesh Bank and Bangladesh bank simply circulates the said defaulter's name in the CIB Report to all Banks and Financial Institutions.

 

Al-Amin Bread & Biscuit Ltd vs Bangladesh Bank 17 BLC 653.

 

Section 27(Ka Ka)

 

Declaration from a Court is not at all necessary for sending the name of defaulting borrower to Bangladesh Bank under Section 27KaKa of the Act. It was not necessary to issue any further show cause notice by the Bangladesh Bank. Moreover, the banks or financial institutions are to send the list of defaulting borrower to Bangladesh Bank under section 27 KaKa(i) of the Act and the Bangladesh Bank is to sent the said list of borrowers/companies to all financial institu­tions under Section 27 KaKa (2) of the Act.

 

Al-Amin Bread & Biscuit Ltd vs Bangladesh Bank 17 BLC 653

 

Section 27 Kaka

 

In the circumstances simply because the notice under the Bank­ruptcy Act, 1997 was stayed by this Court it cannot be said that the demand for repayment of the loan amount was also stayed by this Hon'ble Court and therefore, the petitioner's status as a borrower who has defaulted in repaying the instalments remains unchanged. As a natural result of the said default the respondent Sonali Bank sent the loan status of the petitioner's account to Bangladesh Bank who again, in normal course of business, included the petitioner's name in the CIB Report. There is no illegality on the part of the Bangladesh Bank and Sonali Bank to do what they did pursuant to section 27 Kaka of the Bank Companies Act 1991. To do otherwise would have been an illegality.

 

Major Monjur Quader (Retd) vs Bangladesh Bank 12 BLC 105.

 

Sections 27 Ka and 27 Kaka

 

Since section 27 Kaka of the Bank Companies Act, 1991 came into force when the petitioner was neither a share holder of the said company nor a Member of the Board of Directors of the borrower company, his share having been validly transferred prior to that date, he is only liable for repayment of the loan by virtue of his personal guarantee to the bank. As stated in our judgment in Writ Petition No. 3931 of 2001, a guarantor's liability will not attract the provisions of section 27 Kaka of the Bank Companies Act, 1991 and, as such, the petitioner's name cannot be included in the CIB list.

 

Major Monjur Quader (Retd) vs Bangladesh Bank 12 BLC 111.

 

Section 31(1)

 

The Cabinet Committtee further decided in the same meeting that there shall be no further extension of time limit to complete formalities by the writ petitioner. The Bangladesh Bank accordingly, informed that the proposed Sundarban Bank International Ltd. did not reach the stage at any time for applying for licence to com­mence banking business. This letter was either addressed to the writ petitioner nor a copy of the same was endorsed to him and it is also not an order rather it was a reply made in compliance with the query made by the Ministry of Finance by Annexure-O to the writ petition. Moreover, the impugned Annexure-Q being a reply by the Bangladesh Bank in reply to query made by the Ministry of Finance and uncommunicated to the writ petitioner in the process of reaching decision in the matter, it did not create any legal right in favour of the writ petitioner.

 

Bangladesh Bank vs M Habibullah Bahar 12 BLC (AD) 87.

617

Banking Companies Ordinance, 1962

Citation: 12 BLC (AD) 87

Case Year: 1962

Subject: Banking Companies

Delivery Date: 2018-06-07

Banking Companies Ordinance, 1962

[LVII of 1962]

 

 

Section 27(1)

 

The Cabinet Committtee further decided in the same meeting that there shall be no further extension of time limit to complete formalities by the writ petitioner. The Bangladesh Bank accordingly, informed that the proposed Sundarban Bank International Ltd. did not reach the stage at any time for applying for licence to commence banking business. This letter was neither addressed to the writ petitioner nor a copy of the same was endorsed to him and it is also not an order rather it was a reply made in compliance with the query made by the Ministry of Finance by Annexure-O to the writ petition. Moreover, the impugned Annexure-Q being a reply by the Bangladesh Bank in reply to query made by the Ministry of Finance and uncommunicated to the writ petitioner in the process of reaching decision in the matter, it did not create any legal right in favour of the writ petitioner.

 

Bangladesh Bank vs M Habibullah Bahar 12 BLC (AD) 87.

618

Banking Companies Ordinance, 1991

Citation: 11 BLC 56, 15 BLC 34

Case Year: 1991

Subject: Banking Companies

Delivery Date: 2018-06-07

Banking Companies Ordinance, 1991

[XV of 1991]

 

 

Section 30

 

The Money Lenders Act, 1933, Bengal Money Lenders Act, 1940 and Usurious Loans Act, 1918 are applicable for the Money Lenders who are registered under those Acts and the Provisions of those Acts are not applicable in case of a schedule bank here in Banking Companies Act, 1981 and the plaintiff schedule bank is guided by the Banking Companies Ordinance, 1991. Further, section 30 of the Banking Companies Ordinance, 1991 provides bar on the Court to interfere with the charging of interest fixed by and between the bank and its client.

 

Rupali Bank Ltd vs Md Jiaur Rahman 11  BLC 56.

 

Section 27 Ka Ka

 

Since the petitioner company failed to repay the loan, the respondent No.3 legally furnished credit information to the Bangladesh Bank in compliance of section 27KaKa of Bank Companies Act, 1991. The respondent No.l did not violate any provisions of law and or acted contrary to any provisions of law in including the name of the petitioners' Company in the CIB report. The respondent No. 3 classified him as defaulter in the year 1992 and the names of the petitioners were legally included in the CIB Report in 1997.

 

Sultana Jute Mills Ltd vs Bangladesh Bank 15 BLC 34.

619

Bankruptcy Act, 1997

Citation: 12 BLC 105, 13 BLC 108

Case Year: 1997

Subject: Bankruptcy

Delivery Date: 2018-06-07

Bankruptcy Act, 1997

[X of 1997]

 

Section 9(1)

 

The notice issued under section 9(1) of the Bankruptcy Act, 1997 was stayed by this Court on 6-2-2000. There was no stay of the operation of the demand of repayment of the loan claimed by Sonali Bank. In the circumstances simply because the notice under the Bankruptcy Act, 1997 was stayed by this Court it cannot be said that the demand for repayment of the loan amount was also stayed by this Hon'ble Court and therefore, the petitioner's status as a borrower who has defaulted in repaying the instalments remains unchanged. As a natural result of the said default the respon­dent Sonali Bank sent the loan status of the petitioner's account to Bangladesh Bank who again, in normal course of business, included the petitioner's name in the CIB Report. There is no illegality on the part of the Bangladesh Bank and Sonali Bank to do what they did pursuant to section 27 Kaka of the Bank Companies Act 1991.

 

Major Monjitr Quader (Retd) vs Bangladesh Bank 12 BLC 105.

 

Section 96

 

The petitioner has miser­ably failed to cross the first hurdle as to the question of maintainability of the instant writ petition mainly on two counts. Firstly, since the Bankruptcy Act is a special law and special provision having been provided in section 96 of the Bankruptcy Act, 1997 for preferring appeal against the judgment and decree passed by the Bankruptcy Court and therefore, the question of entertaining an application under \rticle 102 of the Constitu­tion does not arise at all. Secondly, whether notices/summons were properly served or not or whether the petitioner was a guarantor •/mere a shareholder of the borrower com­pany or borrowed money from the bank or not are disputed question of facts and for which remedy lies in the Civil Court and, not under summary Writ Jurisdiction.

 

Mir Niaz Mohammad vs Additional District Judge 13 BLC 108.

620

BARI Service Regulations, 1990

Citation: 14 BLC 228, 13 BLC 575

Case Year: 1900

Subject: BARI Service

Delivery Date: 2018-06-07

BARI Service Regulations, 1990

 

Regulation 16

 

By allowing the peti­tioner (acceptance) of joining to the post and allowing him to resume his duties with the respondents 3-5 literally waived its right to discontinue the service of the petitioner, impugned orders/issued under the signature of the respondent Nos. 2 & 5 cancelling the joining report of the petitioner, accepted by respondent No.3 on 17-3-2005 and the order issued under the signature of the respondent No.5 giving current charge of the petitioner's post to another officer is arbitrary, illegal and malafide and for a collateral purpose.

 

Kazi Md Sadequl Islam vs Bangladesh 14 BLC 228.

 

BCSIR Service Regulations, 1989 Regulation 2(Cha) and 13(i)(4)

 

In reality, the petitioners did not acquire the necessary qualification and requirement at the relevant time for promotion to the post of Chief Scientific Officer, as required under the BCSIR Service Regulations. On the other hand, both the respondent Nos. 8 and 9 had served in the post of Principal Scientific Officer for more than 5 years and had thereby fulfilled the requirement as to the length of service in that particular post before their promotion as Chief Scientific Officers.

 

Shamsul Haque (Md) vs Bangladesh 13 BLC 575.

621

Bengal Tenancy Act, 1885

Citation: 11 BLC 714, 12 BLC 586, 12 BLC 652

Case Year: 1885

Subject: Bengal Tenancy

Delivery Date: 2018-06-07

Bengal Tenancy Act, 1885

[VIII of 1885]

 

Section 3Both the plaintiff-

 

appellant and defendants-respondents claim title and possession in the suit land. It is admitted that nature of land is forest. The defendants claim the suit land on the basis of amalnama dated 15th Poush, 1344 BS taken by Abdul Gafur; that Zaminder granted Dakhilas; that RS and SA record were prepared in the name of Abdul Gafur and that Abdul Gafur paid rent to the government. CS record which was finally published long before 1938 AD and thus the appearance of the name of Abdul Gafur in CS Khatian, who alleged to have taken settlement some time in 1938 AD, have been proved to be fabricated and manu­factured one. Moreover, the amalnama has not been proved as per law. Since the foundation of Title of the defendants-respondents has not been proved and thus the CS khatian has been proved fabricated and manufactured and the SA khatian prepared on the basis of alleged CS khatian has no leg to stand. Dhakalias granted on the basis of khatian does not create any title which was also obtained fraudulently.

 

Bangladesh vs Serajul Haque 11 BLC 714.

 

Section 86(7)

 

It is the defendants' case that the plaintiff's predecessor being unable to pay rent had surrendered physical posses­sion of the suit land in favour of the defendants' predecessor and thereafter vide Exhibit-kha and kha (1) the contesting defendants got the suit land in their actual physical possession. That fact having had proved, the question of partial surrender cannot be fatal in the instant case in view of the fact that the CS recorded tenant's heirs, the defendant Nos. 7 and 10 had admitted the defendants possession in the suit land meaning thereby that there was a surrender. The said surrender being a voluntary surrender the same cannot be said to be illegal surrender.

 

Abdul Hamidvs Aminul Islam Chowdhnry 12 BLC 586.

 

Section 103

 

Cadastral survey record-of-right, though, is the oldest record-of-right prepared under section 103 of The Bengal Tenancy Act State Acquisition record-of-right being a latter record-of-right got presumptive value as to its correctness as enjoined under section 144A of the State Acquisition and Tenancy Act which enjoins that every entry in a record-of-right prepared or revised under section 144 shall be evidence of the matter referred to in such entry, and shall be. presumed to be correct until it is proved by evidence to be incorrect.

 

Kartik Chandra Mondol vs Zoynal Dewan 12 BLC 652.

622

Bills of Lading Act, 1856

Citation: 16 BLC 603, 16 BLC 256

Case Year: 1856

Subject: Bills of Lading

Delivery Date: 2018-06-07

Bills of Lading Act, 1856

[IX of 1856]

 

Section 1

 

The importer of the cargo being notifying party enters into the shoe of the supplier-shipper through handing over of Bill of Lading by him to the importer.

 

Jaya Vegetable Oil Ltd vs MT Komandarm Fedko 16 BLC 603.

 

Section 1

 

Under the voyage charter party agreement the liability of delay in reaching discharge port shifts to the charterer if the delay is caused under agreement with the charterer and the same shall not be transferred to the consignee.

 

Jaya Vegetable Oil Ltd vs MT Komandarm Fedko 16 BLC 603.

 

Section 3

 

Ship owner remained 'legal carrier' in a Voyage charter party' agreement and impliedly undertakes that the ship will proceed with reasonable dispatch subject to the condition of the charter party agreement.

 

 Vegetable Oil Ltd vs MT Komandnrm Fedko 16 BLC 603

 

Section 3

 

Unless the original copy of the bills of lading is produced before the master of the vessel the master in no way is liable to deliver the cargo to any person, else he will face the consequence of the offence of conversion.

 

LMJ International Ltd. India vs MV BK Ace 16 BLC 256.

623

Building Construction Act, 1952

Citation: 13 BLC 102, 15 BLC 770, 12 BLC (AD) 84,

Case Year: 1952

Subject: Building Construction

Delivery Date: 2018-06-07

Building Construction Act, 1952

 

Section 3

 

The Authorised Officer is authorised to sanction or approve the plan and he is not authorised to refuse the sanction if the legal requirements are fulfilled and the Building Construction Rules of 1996 are complied with. The petitioner appeared to have made the representation dated 30-6-2005 stating that he had not received any plan from his predecessor for the standing structures and has prayed for approval of the plan on payment of requisite fees, the notice dated 12-7-2005 directing the petitioner to demolish the structures is without any lawful authority.

 

Sufi Samrat Hazrat Mahbub-e-Khuda VS RAJUK 13 BLC 102.

 

Sections 3A, 9 and 15

 

It is well-settled that malafides goes to the root of jurisdiction and if the impugned action is malafide, the alternative remedy provided by the statute need not be availed of. Neither the Building Construction Act, 1952 nor the 1995 expressly or impliedly excludes the operation of the principle of "Audi Alteram Partem". As Dr SA Mahmood's right to enjoyment of the case plot was adversely affected by the impugned Memos of the Environment Directorate and the RAJUK; in all fairness and reasonableness, he ought not to have been condemned unheard. To all intents and purposes, in our assess­ment, the Environment Directorate and the RAJUK's impugned Memos dated 26-8-2009 and 7-9-2009 respectively are unreasonable in the Wednesbury sense. As the said Memos Dated 26-8-2009 and 7-9-2009 are malafide and without jurisdiction, Dr SA Mahmood was not required to approach the Appellate Authority either under Section 14 of the iflwt i?.wt ^rtt^, ifc&ff or under Section 15 of the Building Construction Act, 1952 and he rightly approached the High Court Division directly under Article 102 of the Constitution.

 

Unique Hotel & Resorts vs Bangladesh 15 BLC 770.

 

Section 3B(l)(b)

 

On a perusal of the provision of section 3B of the Building Construction Act, 1952 it appears that before issuance of the impugned notice dated 17-11-2002 to dismantle the structures of the writ petitioners the Rajuk ought to have issued prior show cause notice as required under section 3B(I)(b) of the said Act.

 

Rajdhani Unnayan Kartripakklw vs Jamuna Builders Ltd 12 BLC (AD) 84.

 

Section 3B(5)(d)(i) and (iii)

 

Consi­dering the offer of the writ petitioners to pay maximum fine i.e. 10 times of the fees for sanction of the plan as per rules, the High Court Division passed the impugned order plan which has remained pending/ unattended by RAJUK for a long time but directed payment of 10 times of the fees for the sanction. It appears that the High Court Division committed no error in the decision.

 

Rajdhani Unnayan Kartripakkha vs Jamitna Builders Ltd 12 BLC (AD) 84.

624

Cantonment Act, 1924

Citation: 17 BLC (AD) 34

Case Year: 1924

Subject: Cantonment

Delivery Date: 2018-06-07

Cantonment Act, 1924

[II of 1924]

 

Section 273(1)

 

The purpose of issuance of notice arises only if the plaintiff seeks any relief against any act done by the Board in order to give it the opportunity to rectify its action. The section being a manda­tory one is to be complied with and is appli­cable to all forms of action and all kinds of reliefs sought against Cantonment Board.

 

Shahid Hamid vs Nilufar Momtaz 17 BLC (AD) 34.

625

Carriage of Goods by Sea Act, 1925

Citation: 13 BLC 763

Case Year: 1925

Subject: Carriage of Goods by Sea

Delivery Date: 2018-06-07

Carriage of Goods by Sea Act, 1925

[XXVI of 1925]

 

Section 2

 

Having, therefore, had regard to the above referred provisions of section 4(4) of the Admiralty Court Act, 2000 and section 2 of the Carriage of Goods by Sea Act and having perused, in particular, this Court's previous order in Admiralty Suit No. 27 of 2005 that dealt with a similar dispute arising out of the same facts and circum­stances, this Court is inclined to hold that the Order of arrest of 10-7-2007 of the vessels 'MV Lady Fatima' and 'MV Da Li' is not sustainable in law. It is at this juncture that this Court is additionally put on notice of the fact that of the two vessels subject to that Order of arrest, one vessel namely, 'MV Lady Fatima', did not, in fact, call on and was not available at Chittagong Port at any material time. This Court has taken note of the fact, and as asserted in the supplementary-affidavit filed on behalf of the defendant Nos. 1,2 and 15, that in making the order of arrest on 10-7-2007 this Court possibly didn't have the benefit of all relevant facts and circum­stances of this case placed before it.

 

Accordingly, the application is allowed. The Order of arrest of the vessel 'MV Da Li' is hereby vacated and it is ordered that the vessel 'MV Da Li' now berthed at Chittagong Port, Chittagong be forthwith released from arrest. In the light of the fact that the other vessel 'MV Lady Fatima' had never been effectively the subject of the Order of arrest dated 10-7-2007, that Order of arrest to the extent that it applied to the vessel 'MV Lady Fatima' necessarily also stands vacated.

 

HRC Shipping Ltd vs 'MV Lady Fatima' and 'MV Da Li' 13 BLC 763.

626

Chittagong Hill Tracts Regulation, 1900

Citation: 13 BLC 349

Case Year: 1900

Subject: Chittagong Hill Tracts

Delivery Date: 2018-06-07

Chittagong Hill Tracts Regulation, 1900

[Regulation No. I of 1900]

 

Regulation No. 4(2)

 

The people of the Hill Districts of Chittagong are the citizens of this Republic and all laws which are now in force in Bangladesh should be equally applicable to the Hill Districts of Chittagong and in order to give benefit of those laws to the inhabitants of those areas, it is high time for the Executive Organ of the State to take necessary steps for setting up of Civil and Criminal Courts as per provisions of the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1898 forthwith and apply all other laws of the country to that area without any let or hindrance.

 

Ibrahim (Md) vs Ratan Chandra Nath 13 BLC 349.

627

Chittagong Municipal Corporation Ordinance, 1982

Citation: 14 BLC 779

Case Year: 1982

Subject: Chittagong Municipal Corporation

Delivery Date: 2018-06-07

Chittagong Municipal Corporation Ordinance, 1982

[xxxv of 1982]

 

Sections 66, 67, 68, 71 & 139

 

Upon perusal of the Ordinance No. 35 of 1982, particularly sections 66, 67, 68, 71 and 139, it appears that the petitioner is dealing in profit earning commercial establishment and is running business for profit through its different establishments namely, departmen­tal stores, establishing markets and shops, etc. In view of the cited decision the same if read together with the bilateral agreement (Annexure-X-1) annexed with the Affidavit-in-opposition, the service of the Respondent No. 2 comes within the meaning of labour and the Chittagong City Corporation comes within the meaning of industry. Consequent­ly comes within the purview of IRO and is very much amenable by filing a dispute under section 34 of the Ordinance.

 

Chittagong City Corporation vs Abdur Rahman 14 BLC 779.

628

Chittagong Port Act, 1914

Citation: 14 BLC 730

Case Year: 1914

Subject: Chittagong Port

Delivery Date: 2018-06-07

Chittagong Port Act, 1914

[V of 1914]

 

Section 50B(2)

 

It is admitted that the defendant No. 5 as clearing agent of the plaintiff did not take any step for delivery of the consignments from the defendant No. 2, local agent of defendant No. 1 within stipulated period of time i.e. five days under section 50B(2) of the Chittagong Port Act. The plaintiff handed over documents to his clearing agent, defendant No. 5, for the purpose of clearance of the goods from the Chittagong Port on 2-6-74 and said clearing agent approached the defendant No. 3 for obtaining delivery of the suit consignment after a lapse of about four months. Moreover, the plaintiff or his clearing agent, the defendant No. 5 did not take any step to get the alleged damaged goods surveyed before 29-7-74 though they knew that some cartons landed with trivial damage, which was nominal and of trivial nature due to normal handling. Trial Court only considering the report of surveyors surveyed on behalf of the plaintiff decreed the suit against the defendant Nos. 1 and 2 only, which cannot be sustained in law.

 

Mitsui OSK Lines Ltd vs Bangladesh Jatiya Maitshayajibi Samabaya Samity Ltd 14 BLC 730.

629

Civil Courts Act, 1887

Citation: 15 BLC 633, 13 BLC (AD) 114, 11 BLC 98

Case Year: 1887

Subject: Civil Courts

Delivery Date: 2018-06-07

Civil Courts Act, 1887

[XII of 1887]

 

Sections 3, 10, 18, 20 and 21

 

From the combined reading of the aforesaid provisions particularly sections 44A(1) and 39(2) of the Code, we are of the view that the Joint District Judge has the jurisdiction to execute the foreign decree whose certified copy was filed in the Court of District Judge and subsequently transferred to him. Therefore, the Courts below after appreciat­ing materials on record by rejecting the applications committed no error of law.

 

Al-Arafah Islami Bank vs Nobel Enterprise 15 BLC 633.

 

Sections 8,11,19 and 21

 

The Full Bench considering sections 6, 22, 24 and Order XLVIII Rule 1 of the Code of Civil Procedure, section 8 of the Suit Valuation Act, 1887 as amended by the Civil Courts (Amendment) Act, 2001, sections 8,11,19 and 21 of the Civil Courts Act, 1887 and other relevant provisions of law has come to the conclusion that the District Judge has no jurisdiction to hear the revisional application against the order of the Joint District Judge in a suit the valuation of which is above Tk. 5,00,000 (Taka five lac) and in such matters the revisional application shall lie before the High Court Division under section 115(1) of the Code of Civil Procedure.

 

Bangladesh vs AHM Khurshed Ali 13 BLC (AD) 114

 

Section 21

 

The District Judge can exercise his power of revision under section 115(2) of the Code where his pecuniary jurisdiction in revisional matter is co-exten­sive with that of his appellate jurisdiction, i.e. where the value of the subject-matter does not exceed the appellate jurisdiction. There­fore, in the instant case the District Judge lacked inherent jurisdiction to entertain the revisional application against the order of learned Joint District Judge as the valuation of the suit is over five lac.

 

Joysna Ara Amin vs Sudhangshu Bimal Dhar 11 BLC 98.

630

Civil Rules and Orders

Citation: 12 BLC (AD) 25, 13 BLC 1

Subject: Civil Rules and Orders

Delivery Date: 2018-06-07

Civil Rules and Orders

 

Rules 388(2)

 

The order was passed after hearing the learned lawyers of both the sides and also in their presence and so, the direction of informing the order to the parties was redundant, specially when Note (1) of Rule 388(2) of the Civil Rules and Orders provides that it is for the Advocates to be present at the proceeding to make themselves acquainted with the order passed and it is not the duty of the officers of the Court to call upon the Advocates to show the orders issued or to inform them of the nature of the orders passed.

 

Manir-un-nessa Khanam vs Syed Madassir Ali 12 BLC (AD) 25.

 

Volume I, Article 217

 

Plaintiff-peti­tioner in Supplementary Affidavit annexed photocopy of certified copy of Sale Certificate as Annexure-Z-16 and that Sale Certificate is issued by Sub-Registrar, Sadar Record Room, Dhaka. Learned Counsel for plaintiff-peti­tioner produced before me certified copy of the said Sale Certificate. The certified copy of the Sale Certificate had been obtained on 25-10-1993. A careful comparison of certified copy of Sale Certificate, Exhibit 3 issued from Civil Court and Certified Copy of Sale Certificate issued by Sub-Registrar, Sadar Record Room, Dhaka manifests that two copies of Sale Certificates are exactly the same. Issuance of a certified copy from Civil Court may be an irregular act but by that irregular act it cannot be at all suggested that sale certificate is a forged and created one.

 

Hari Rani Basak vs Bangladesh 13 BLC 1.

631

Co-operative Societies Act, 2001

Citation: 12 BLC 601, 16 BLC 455

Case Year: 2001

Subject: Co-operative Societies

Delivery Date: 2018-06-25

Co-operative Societies Act, 2001

[XLVII of 2001]

 

Sections 4 and 18(5)(6)(7)

 

In the instant case, it appears that the election of 31-7-2005 was conducted at the instance of the Committee, which was declared to be illegal and without lawful authority by the judgment passed in Writ Petition No. 5807 of 2004, and the said writ petition being mainly for holding of free and fair election of a Managing Committee of the Samity, the election as held by the said illegal Committee on 31-7-2005 cannot be said to be bonafide and the election conducted by an illegal authority cannot sustain in the eye of law.

 

SM Delwar Hossain vs Bangladesh 12 BLC 601.

 

Sections 83 (2) and 86(2)

 

The learned Metropolitan Magistrate, Dhaka cannot investigate into the case in view of the subsection 2 section 155 of the Code of Criminal Procedure. The Registrar of Co­operative Society being the administrative head of the Co-operative Societies under section 83(2), 86(2) should be allowed to discharge its duties in relation to the conduct of its members. The present accused petitioner is legally entitled to be protected under section 86 sub-section 2 of the Act.

 

HNM Shafiqur Rahman vs State 16 BLC 455.

632

Co-operative Societies Ordinance, 1985

Citation: 15 BLC 421,

Case Year: 1985

Subject: Co-operative Societies

Delivery Date: 2018-06-25

Co-operative Societies Ordinance, 1985

[I of 1985]

 

Sections 6 & 7

 

In the absence of any such general or special order in that behalf, we cannot term the District Co-operative Officer (respondent No.4) as an Assistant Registrar, or for that matter, a person appointed under section 6 to assist the Registrar. The non-conferment of powers of the Registrar upon the respondent No.4, as is apparent from the materials on record, cuts at the very root of the case of the petitioners. So our definite conclusion is that the District Co­operative Officer (respondent No.4) cannot be designated as an Assistant Registrar or a person appointed under section 6 to assist the Registrar.

 

Yusuf Ali vs Additional District Judge 15 BLC 421.

 

Section 14

 

Since it is our view that the Society is a necessary party in the writ petition and since admittedly the Society has not been made a respondent, the writ petition is incompetent on this count. If the necessary party is not before the Court, then whether any objection is raised or not at the earliest opportunity, the petitioners will run the risk of having an ineffective order to his peril and their application may be adjudged as incompetent.

 

Yusuf AH vs Additional District fudge 15 BLC 421.

 

Sections 86 & 87

 

The District Co­operative Officer was neither empowered by the Government to act as an Assistant Registrar nor was he appointed to assist the registrar. In that view of the matter, the reference to the District Co-operative Officer instead of the Registrar was illegal. In the premises stated above, the whole edifice of the dispute case initiated at the instance of the petitioners falls to the ground. Conse­quently, the award made by the respondent No.5 and its affirmation by the appellate authority (respondent No.4) are without jurisdiction.

 

Yusuf AH vs Additional District Judge 15 BLC 421.

 

Section 134(5)

 

As per section 134(5) of the Ordinance, any party aggrieved by a decision of the appellate authority may, within 60(sixty) days from the date of such decision, make an application to the District Judge whose decision thereon shall be final. So the application made by the present contesting respondents before the District Judge, Dhaka should have been registered a Miscellaneous Case instead of Other Class Suit No.5 of 1997. It appears that the respon­dent No.l failed to construe the provisions of section 134(5) of the Ordinance in this regard. What is more curious is that the parties concerned also failed to draw the attention of the respondent No.l to the provisions of section 134(5). Be that as it may, the erroneous classification of the application before the District Judge of Dhaka as an Other Class Suit being No.5 of 1997 has not affected the merit of the case.

 

Yusuf AH vs Additional District Judge 15 BLC 421.

633

Co-operative Societies Rules, 1987

Citation: 15 BLC 421

Case Year: 1987

Subject: Co-operative Societies

Delivery Date: 2018-06-27

Co-operative Societies Rules, 1987

 

Rule 3(1)

 

Any person who does not fulfil the requirement of membership of the Co-operative Society shall not be eligible to be a member or to continue as a member of the Society as envisaged by Rule 3(1) of the Co-operative Societies Rules of 1987.

 

Yusuf Ali vs Additional District Judge 15 BLC 421.

 

634

Code of Civil Procedure, 1908-Part I

Citation: 15 BLC 633, 13 BLC (AD) 114, 17 BLC 674, 11 BLC 98, 11 BLC 438, 11 BLC (AD) 10, 12 BLC (AD) 92, 33 BLC 208, 12 BLC 705, 17 BLC 715, 11 BLC (AD) 59, 16 BLC 172, 12 BLC (AD) 138, 16 BLC 263, 12 BLC 299, 15 BLC 754, 16 BLC (AD) 96, 16 BLC 239, 15 BLC 702

Case Year: 1908

Subject: Code of Civil Procedure

Delivery Date: 2018-06-11

Code of Civil Procedure, 1908

[V of 1908]

 

Sections 2(4), 15, 24, 32, 38, 39 & 44A(1)

 

In view of the provisions laid down in sections 2(4), 15, 24, 32, 38 and 39 of the Code, sections 3, 10, 18, 20 and 21 of the Act and section 3(15) of the General Clauses Act, 1897 the District Court mentioned in section 44A(1) of the Code means only the Court of the District Judge. In other words certified copy of the decree under section 44A(1) of the Code must be filed in the Court of District Judge. It is pertinent to point out that admittedly the decree-holder under section 44A(1) of the Code filed the certified copy in the Court of District Judge and ultimately it was transferred to Court of Joint District Judge for execution. After combined reading of the aforesaid provisions particularly sections 44A(1) and 39(2) of the Code, we are of the view that the joint District Judge has the jurisdiction to execute the foreign decree whose certified copy was filed in the Court of District Judge and subsequently transferred to him. Therefore, the Courts below after appreciating materials on record by rejecting the applications committed no error of law.

 

AI-Arafah Islami Bank Ltd vs Nobel Enterprise 15 BLC 633.

 

Sections 6,15, 22/ 24 and 115(1)(2)

 

The Full Bench considering sections 6, 22, 24 and Order XLVIII Rule 1 of the Code of Civil Procedure, section 8 of the Suit Valuation Act, 1887 as amended by the Civil Courts (Amendment) Act, 2001, sections 8,11,19 and 21 of the Civil Courts Act, 1887 and other relevant provisions of law has come to the conclusion that the District Judge has no jurisdiction to hear the revisional application against the order of the Joint District Judge in a suit the valuation of which is above Tk. 5,00,000 (Taka five lac) and in such matters the revisional application shall lie before the High Court Division under section 115(1) of the Code of Civil Procedure.

 

Bangladesh vs AHM Khurshed Ali 13 BLC (AD) 114.

 

 

Section 9

 

Once mortgaged, it shall always be deemed to be a mortgage. So, the doctrine of past and closed transactions are not applicable after insertion of the definition of "complete usufructuary mortgage" in the State Acquisition and Tenancy Act. Legality and propriety of any order passed by Sub Division Officer is not amenable under section 9 of the Code of Civil Procedure, as after the expiry of 7(seven) years the property mortgaged in question deemed to be realized automatically, and, as such, the proceeding started by the Sub-Divisional officer not to determine the validity of law or mortgage but it was, in fact for only to pass necessary order. If the mortgagee failed or refused to hand over the possession of the property, if not, handed over in the meantime, and in that case, the Sub-Divisional Officer is authorized to pass order for redemption and also to hand over the possession of the property to the mortgagor.

 

Budhimante Base vs Ajnacharan Biswas 17 BLC 674.

 

Section 9

 

Jurisdiction in law means the power and authority of a Court to hear and determine a cause to adjudicate and exercise judicial power in relation to it. It other words, by jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. Therefore, the jurisdiction of a Court means the extent of authority of a Court to adminis­ter justice prescribed with reference to the subject matter, pecuniary value and local limits.

 

Joysna Ara Amin vs Sudhangshu Bimal Dhar 11 BLC 98.

 

Section 11

 

In an appeal the appellant is allowed to re-agitate the grounds taken by him before the Registrar and in an appropriate case can also urge additional grounds before the High Court Division, If that be so why an "aggrieved person" will not be able to file a rectification case under section 46 of the Act against the decision of the Registrar before the High Court Division without preferring an appeal to the High Court Division. It seems there is no legal bar in doing so. In other words, section 76 does not control section 46 or vice versa. They are independent of each other. It is the choice of the aggrieved party which of the two remedies he will avail. On this score also the principle of res judicata is not attracted in the instant case. To an aggrieved party two alternate remedies are available against the decision of the Registrar. In the event of rejection of an opposition he can file an appeal under section 76 of the Act to the High Court Division or in the alternative can file a rectification case under section 46 of the Act. The remedies are parallel to each other.

 

Rahimuddin Mia (Bharasa) (Md) vs Registrar of Trade Marks 11 BLC 438.

 

Section 11

 

The High Court Division was in error in holding that the Title Suit No. 22 of 1987 was barred on the ground of principle of res judicata in view of the ex parts decree in the Title Suit No. 860 of 1981 appears to be not well conceived in that so long the ex parte decree is not set-aside the same being remaining the legal one the subsequent suit between the same parties, in respect of the matter which was the subject matter of the previous suit may not be the position of the parries in the later suit, similar to the earlier suit relating to the subject matter of the previous suit and as to which a competent court has passed the decree, the later suit is certainly barred by the principle of res judicata.

 

Government of Bangladesh, represented by the Secretary, Ministry of Forest vs Md Osimuddin 11 BLC (AD) 10.

 

Section 11

 

Regarding the contention that the parties as well as the subject matter of the present suit and that of the previous suits i.e. Title Suit No. 48 of 1965, 18 of 1974 and 567 of 1980 being same, the present suil for declaration of title is barred by res judicata under section 11 of the Code of Civil Procedure, the High Court Division relying on the case of Kala Meah vs Faiz Ahmed reported in 2 MLR (AD) 218 rightly held that the present suit is hit by the principle of res judicata.

 

Kulsum Bibi vs Deputy Commissioner, Magura 12 BLC (AD) 92.

 

Section 11

 

In the instant case, since the plaintiffs were not parties in proceedings of their predecessors, so they have no locus standi to bring the suit for declaring the order of the proceedings illegal in which they were not parties. They were bound by the j decisions taken by the Revenue Courts against their predecessors. So, the suit of the plaintiffs are barred by the principle of res judicata. Moreso, the plaintiffs have also failed to prove title and possession in the suit land.

 

Abdul Aziz vs Kabir Ahmed Patwaiy 33 BLC 208.

 

 

Section 11

 

Since the subject-matter of the Rule had already been challenged before a civil Court by one of the members of the chamber and that matter was ended with the dismissal of the suit, the said judgment and order of dismissal will operate as res judicata against the Rule. It further appears that a schedule of election was published (Anne-xure-C to the Writ Petition). Whether the notice was served upon the members under Rule 15(2) of the Trade Organisation Rule, 1994 is a question of fact and that cannot be decided by this Court in writ jurisdiction. It is too late to raise the question before this Court.

 

Anwar Sadat Sarker vs Ministry of Commerce 15 BLC 232.

 

Section 11

 

The condition of res-judicata is that former suit must have been a suit between the same parties or between the parties under whom they or any of them claim. This condition recognises the general principle of law that the judgment and decrees bind the parties and privies. There­fore, when it is admitted that the predeces­sors of the plaintiffs-respondents were the parties in suit No. 29 of 1959 (previous No; 17, of 1961 and 12 of 1962), the judgment and decree of that suit bind the plaintiff-res­pondent and the present suit is barred by res-judicata.

 

Rezaul Karim vs Moulana Md Harttn-ur-Rashid 12 BLC 705.

 

Section 15

 

Section 8 of the Act imposes prohibition of registration of certain mattes and provides that no "Trade Mark " nor part of a trade mark shall be registered which consists of or contains, any scandalous as designed, or any matter the use of which would by reason of its being likely to deceive or to cause confusion or otherwise, be dis­entitled to protection in a Court of justice.

 

Wellcome Ltd vs Incepta Pharma Ltd 17 BLC 715.

 

Section 20

 

The appellant, taking recourse to the provision of section 20(a), CPC read with Explanation II to said section, is not competent to file the suit in Dhaka, which is, in fact, the offshoot of the suit which was decreed at Rangpur, since for the purpose of establishing that the decree in Artha Rin Adalat Case No. 55 of 1990 was legally passed and that execution case taken out on the basis of the decree obtained in the Artha Rin Adalat Case and that property of the appellant sold in the execution case were legally done are to be established by the respondent No. 2 through the evidence, both oral and documentary, from Rangpur. So, considering the convenience of the respon­dent No. 2 in a situation like the instant one, the appellant is not competent to file the suit as filed in the Court of Sub-ordinate Judge, Dhaka impleading the respondent No. 1 whose Head Office is at Dhaka and carries on business through its branches in Rangpur and other places. The High Court Division has quite correctly passed the order for return of the plaint to the learned Advocate of the appellant for filing the same in the appropriate Court.

 

Habibur Rahman (Md) vs UttamBank Ltd 11 BLC (AD) 59.

 

Section 20 & 115(4)

 

It is pertinent to point out that plaintiff instituted the suit showing his permanent address in Rajshahi and defendant business concern is also extended to Rajshahi which is within the local limits of District Judgeship of Rajshahi. So, institution of suit in the Sadar Court of Assistant Judge, Rajshahi, is competent.

 

Jesmin Ara vs Abdul Karim 16 BLC 172.

 

Sections 21 and 99

 

The view taken by the learned Single Judge cannot be accepted that the present suit suffers from defect of party for failing to implead the Government as plaintiff instead of the Divisional Forest Officer, Dhaka Division, rendering the suit liable to be dismissed on that account in view of section 99 of the Code of Civil Procedure. This has been a case of mere mis-description of the plaintiff. Such mis-description of the plaintiff can at best be taken to be a technical defect and it should not be allowed to defeat the ends of justice. The policy underlying sections 21 and 99 of the Code of Civil Proce­dure is that when a case has been decided on merit, it should not be reversed unless it has resulted in failure of justice. Since the present case has been decided on merit, the mere mis-description of the plaintiff shall not be allowed to affect the suit, particularly when the mis-description of the plaintiff in the present suit has not affected the merit of the controversy or the jurisdiction of the court. The present suit, as framed, is found to be maintainable and the judgment and decree dated 29-9-1992 passed by the trial Court is restored.

 

Divisional Forest Officer vs Md Shahabuddin 12 BLC (AD) 138.

 

Section 24

 

The Presiding Judge should always be impertial and he must not add futher line after passing the order, Accordingly, suits were withdrawn from the Court of Joint Distric Judge.

 

Enamul Haque vs Md Ekramul Haque 16 BLC 263.

 

Section 24

 

It is now well settled that in an application for transfer heavy onus lies on the petitioner to show that there is bias in the presiding judge. All the allegations including ; the omission to record the evidence are abso­lutely vague and indefinite and no material whatsoever was either placed before the I learned District Judge along with the appli- f cation filed before him to substantiate the alle gations. It appears that the learned District Judge rightly observed that there is no basis in the allegation of bias and it is the product of mere surmises and conjecture without any material basis.

 

Sirajul Islam Shikder (Md) vs Suruj Miah 12 BLC 299.

 

Section 24

 

Section 24 of the Code of Civil Procedure does not enjoin any condi­tion for transfer. But such transfer can only be made upon some established principles and by exercise of proper judicial discretion. Here, in this case, there is no cogent ground to justify such transfer. Rather such transfer of the case will create immense trouble to both parties and also will incur huge cost of both parties.

 

Jamal Hossain (Md) vs Md Mazid 12 BLC 452.

 

Section 24

 

In this case, the petitioner has filed the application for transfer of the appeal, the respondent has not opposed it by filing any counter-affidavit, and there is no objection at all which presumes that there is no chance of being prejudiced by the other side.

 

Sawj Kumar Barker vs Monoj Kumar Barker 14 BLC 40,

 

Section 24

 

The nature of all three suits are different. Thus from the facts and circum­stances of the case, it appears that the learned District Judge committed wrong in directing to try these three suits simultaneously without taking into consideration that Title Suit No.240 of 1997 and SCC Suit No.20 of 1998 at preliminary stage and it will take long time to reach at the hearing stage for disposal along with Title Suit No.145 of 1997 and, as such, the order No. 10 dated 27-9-2000 passed by the learned District Judge is not legal and thus he has committed an error of law in passing the impugned order.

 

Ashrafunnessa vs Bimsankar, Shiba Bigraha 15 BLC 754.

 

Section 24

 

The High Court Division has rightly found that the Money Suit No. 2 of 2005 filed by the petitioner be transferred to the Court of Joint District Judge, Dhaka to be tried analogously with another Money Suit for the convenience of both the con­tending parties.

 

Shah Sekandar Molla vs New Sagurnal Tea Co. 16 BLC (AD) 96.

 

Sections 24 and 151

 

The learned District Judge surprisingly transferred the case to the Court of the Special District Judge for which the petitioner moved an applica­tion under section 24 read with section 151 of the Code before the District Judge, for withdrawing the case to his own Court from the Court of the Special District Judge which was rejected by the impugned order. Assuming that the Special District Judge is the District Judge even in that case the Mis­cellaneous case is to be heard by him in the capacity of the District Judge in accordance with the Article 27 of PO No VII of 1973. Accordingly, the Miscellaneous case was transferred to the Court of District Judge from the Court of Special District Judge.

 

Moniruzzaman vs Bangladesh House Building Finance Corporation 16 BLC 239.

 

Section 34

 

We do not find any scope to reduce the due amount claimed by the plain­tiff-bank. Consequently the findings and decision of the learned Judge of the trial Court having no basis in evidence, suffer from gross illegality and, as such, the same are not legally sustainable. The learned Judge of the trial Court ought to have decreed the suit in full. So far the interest pendente lite for the period of filing the suit till realization concerned, we are inclined to exercise discre­tion of the Court under section 34 of the Code of Civil Procedure and award simple interest at the rate of 5% per annum.

 

Pubali Bank Ltd vs AKM Shamfuddin 15 BLC 702.

 

Section 44A

 

The Courts below totally misread the provisions of section 44A of the Code of Civil Procedure and thereby arrived at a totally illegal findings in holding that the execution case was filed legally before the Joint District Judge and rejected the applica­tion filed under Order VII Rule 11 of the Code.

 

Nirman International Ltd vs Janata Bank 16 BLC 57.

 

Section 48

 

The Bank did not claim that the judgment-debtor by fraud or force prevented execution of the decree within 12 years. Therefore, it is evident that the execu­tion case not having been filed within 12 years is barred by limitation.

 

Iftekhar Uddin Ahmed vs Artha Rin Adalat 17 BLC 220.

 

Section 48(2)

 

Sub-section (2) of section 48 of the CPC is an overriding clause that -empowers executing Court to order execution even beyond 12 years' time if it is found that the judgment-debtor, by fraud or force, has prevented the decree-holder from executing the decree.

 

Selim Mohammed & Saliullah vs Sonali Bank 16 BLC 498

 

Section  51—Order XXI,  rule  37

 

These provisions of section 51 and Order XXI, rule 37 of the Code are incorporated as a measure of punishment under certain cir­cumstances. On the other hand, section 34 of the Ain empowers the Adalat to detain the judgment-debtor in civil prison (civil custody) as a measure to compel him to pay the decretal money and not as measure of punishment.

 

Manik K Bhattacherjee vs Artha Rin Adalat 16 BLC 195.

 

Sections 55 and 56

 

Collective reading of the sections 5(4), 5(5) and 6(ka) of the Ain of 1990 shows that Artha Rin Adalat shall follow and apply the Code of Civil Procedure as a Civil Court in exercising its jurisdiction, powers and functions while adjudicating any dispute between the parties before it including execution of its decree insofar as it is not inconsistent with the provisions of section 6(Ka) or any other provisions of the Artha Rin Adalat Ain, 1990. Section 6(Ka) has excluded the operation of Rules 3, 5, 6, 7, 8 and 9 in matters of execution of any decree. In other words, Artha Rin Adalat shall execute its decree applying the provisions of sections 55 and 56 of the Code of Civil Procedure read with Order XXI and the rules made thereunder except the rules 3, 5, 6, 7,8 and 9. Application of section 56 of the Code has not been excluded by section 6(Ka).

 

Hazera Begum vs Artha Rin Adalat 12 BLC (AD) 153.

 

Sections 60(1)(K)

 

The petitioner is an employee of Rupali Bank Ltd. and neither it was in the schedule of the Provident Fund Act, 1925 nor was it subsequently included by notification and hence the provisions of sections 3 and 8 of the Provident Fund Act are not applicable in case of petitioner. Section 60(1)(K) of the Code of Civil Procedure is also applicable to compulsory deposits to which Provident Fund Act is applicable and in such legal positions the Artha Rin Adalat has legally attached the provident fund and gratuity of the petitioner.

 

AA Manzurul Hoque vs BSIC Bangladesh Ltd 16 BLC 752

 

Section 75

 

As there is no mention of plot and khatian in the sale deeds which as were executed and registered long before the SA operation came into being, the matter canot be resolved through oral evidence but it can only be ascertained through relayment of the land of the sale deeds stated in the plaint by local investigation.

 

Gopesh Chandra Ghosh vs Radha Krishna Jews 11 BLC 47.

 

Section 76

 

In a proceeding where Government is sued or Government sues the authority to be named as plaintiff or defen­dant or petitioner or appellant or respondent is "Bangladesh" as per provision of Article 146 of the Constitution read with section 79 of the Code of Civil Procedure, in absence of any writ rules on the subject and the Law Officers including the Attorney-General represent the State and not the Government and therefore, even with the change of the Government the stand once taken should be followed consistently to avoid chaos and uncertainty.

 

Bangladesh vs Md Aftabuddin (Retd. District & Sessions Judge) 15 BLC (AD) 25.

 

Sections 96 and 115

 

The accepted and settled principle is that a Court, either appellate or revisional, is required to dispose of the case upon assigning reasoning because of which it is persuaded either to affirm the judgment of the Courts below or to set-aside the judgment of the Courts below. The learned Judge in disposing of the instant case has riot given any reason from which it can be said that the result arrived at by the learned Judge is on the basis of the reasoning that persuaded him to set-aside the judgment of the Courts below. The Appellate Division expects that in future the learned Judge would dispose of the case in the accepted manner i.e. upon discussion of the materials on record, and thereupon assigning reason in support of his judgment. It may be mentioned in the instant case in spite of the quality of the judgment the Appellate Division did not feel to interfere with the same since on perusal of the materials on record the Appellate Division was convinced that although the judgment did not conform to the accepted form or kind, the judgment ought to have but the result arrived at calls for no interference.

 

Ashrafee Begum vs Md Siddiqur Rahman Patwari 13 BLC (AD) 111.

 

Section 100—Second Appeal

 

Since it has been found plaintiff has been able to prove his title through Exhibit l(d) together with possession, the judgment and decree passed by the Court of appeal below on the facts of the given case is not sustainable in law. Although the judgment of the trial Court is a rubbish one but I confirm the ultimate decision of the learned Munsif and decreed the suit.

 

Sekandar Mallik vs Nannu Khan 17 BLC 286.

 

Section 107 Order XLI, rule 27r

 

When no fact of delivery of possession of the suit property or the actual position of the possession thereof was stated in the plaint then how such fact can be noticed or taken into consideration in deciding the merit of the appeal and the documents to that effect can be permitted to be adduced as additional evidence. Considering the above factual and legal aspects of the case it appears that there is no other alternative but to send the suit back on remand to the Court below giving chance to the plaintiffs to amend the plaint and to adduce evidence afresh to prove their case. The suit is send back on remand to the trial Court for hearing afresh giving the plaintiffs chance to amend the plaint in the light of the discussions made hereinbefore and adduce evidence afresh. If the plaintiffs are in possession of the suit property as claimed in the application filed under Order LXI, rule 27 of the Code their possession therein shall in no way be disturbed by RAJUK till disposal of the suit.

 

Shamsuzzoha vs Khandaker Saidur Rahman 15 BLC 165.

 

Section 107

 

The law is now settled that order of remand cannot be passed by a Court as a matter of course [41 DLR (AD) 124] and in a case where the party/parties is/are negligent in producing evidence or to fill up the lacuna 7 BIT (AD) 7] ref.

 

Aslam Khan (Md) vs Abdur Rahim 12 BLC (AD) 99.

 

Section 107

 

It is settled principle of law that unnecessary order of remand entails hardship, agony of fresh hearing and additional expenditure and the same is to be deprecated and discouraged as it tends to delay the administration of justice far from advancing its course.

 

Abdul Quiyum Jalali Ponkhi vs Md Lukman 12 BLC 573.

 

Section 107

 

It is not possible to pass any effective judgment unless the fact is ascertained by an Advocate Commissioner as to whether the road has been constructed upon the land of plot No. 3003 or 3004. There is no laches on the part of the plaintiff to take necessary steps. To meet the ends of justice, a fresh local investigation is necessary. The learned Sub-ordinate Judge, 2nd Court, Feni has not committed an error of law resulting in an error in the decision occasioning failure of justice in allowing the appeal and sending the suit back on remand.

 

Sadeque vs Abdul Khaleque 12 BLC 249.

 

Section 107

 

The lower appellate Court was fully competent to decide the case by itself as the evidence and other materials on record were sufficient to enable it to come to a final decision without entailing the parties with unnecessary trouble and expenses and the appellate Court shirked its responsibility and thus committed an error of law resulting in an error in remanding the suit to the trial Court for fresh trial and delivery of fresh judgment.

 

Lutfunnessa @ Lutfa Begum vs Abdul Halim Khan 12 BLC 767.

 

Section 107

 

The present case is con­sidered a fit case for remand to the appellate Court below for consideration of the application for amendment to the plaint as well as for admission of the basic documents of title filed in that Court by the plaintiff-petitioner by a firishti during the pendency of the appeal as additional evidence by giving opportunity to the defendant-opposite-party No.l to adduce fresh evidence, if any, and then dispose of the appeal afresh.

 

Kaniz Fatema alias Beauty vs Sijed Ruhul Amin 11 BLC 123.

 

Section 107

 

The appellate Court below being the final Court of fact had the entire evidence, both oral and documentary, before it and there is no necessity for sending the case for fresh trial to be tried along with Suit No. 44 of 1994, which is not pending for hearing. Accordingly, the Court of appeal is directed to dispose of the appeal on consi­deration of the materials on record and hearing the parties.

 

Afsar AH Molla vs Saheda Bav 14 BLC 199.

 

Section 107

 

Since the plaintiff submit­ted an amalnama and 14 rent receipts, he should be given an opportunity to prove those documents. It is the settled law that the claim of title upon any case of settlement is required to be proved by adducing evidence. The suit is sent back on remand to the Court of learned Assistant Judge, Kahaloo, Bogra, for affording an opportunity to the plaintiff to produce evidence to prove his settlement and possession in the suit land as well. The Court is directed to allow the Government to submit a written statement.

 

Deputy Commis­sioner, Bogra vs Md Ishak Ali 14 BLC 270.

 

Section 107

 

It is settled principle of law that unnecessary order of remand entails hardship, agony of fresh hearing and additional expenditure and the same is to be deprecated and discouraged as it tends to delay the administration of justice far from advancing its course.

 

Hazrat Ali Bhuiyan vs Md Chunnu Sikder 14 BLC 507.

 

Section 107, Order XXXIV, Rules 6 & 11

 

It is, pointed out that in the plaint the plaintiff-bank has prayed for realisation of the money suit after sale of the mortgage property. The plaintiff-bank further has filed the suit as simple money suit having regard to the Provisions of Order XXXIV of the Code of Civil Procedure and having regard to the prayer 'D' in the plaint, the suit ought to have been filed as the mortgage suit property and obtain a preliminary decree and in that view of the matter it would be just and fair if the suit is sent back to the Court below on remand for a fresh trial giving an opportunity to the plaintiff for amending the plaint as per our observation made above and to pass a proper decree.

 

Rupali Bank Ltd vs Md Jiaur Rahman 14 BLC 56.

 

Sections 114 and 151

 

In legal parlance review is a judicial re-examination of the case by the Judge, in certain circumstance. Section 114 of the Code gives us substantive right of review in certain circumstance and Order XLVII provides therefore. It should not be forgotten that a review is not an appeal in disguise whereby an erroneous decision is reheard and corrected. A review of a judg­ment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition through different counsels of old and over­ruled arguments cannot create a good ground for review. An application for review of a judgment may be made on any of the following grounds: discovery of new and important matter or evidence or mistake or error apparent on the face of the record or any other sufficient reasons.

 

Abrara Begum vs Hosneara Begum 11 BLC 204.

 

Section 114

 

There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Error apparent on the face of record is an error which can be seen by mere perusal of record without reference to any other matter and to find out such error one has not to scrutinise the evidence or record but it should be self-evident from a perusal of the record itself and can be pinpointed without elaborate exami­nation.

 

Farmisi Khatun vs Md Yasin Degree College 12 BLC 762.

 

Section 115

 

Though none appeared for the petitioner yet the High Court Division in exercise of its supervisory power under section 115(1) of the Code of Civil Procedure can dispose of the matter on consideration of the facts and circumstances of the case. Even in the absence of either of the parties the High Court Division can exercise its revisional jurisdiction suo moto.

 

Marjina Khatoon vs Shamsunnahar 14 BLC 289

 

Section 115

 

The plaintiff instituted Family Suit No. 19 of 2002 in the Family Court, under the Provisions laid down in section 6 of the Family Court Ordinance, 1985. Section 10 of the Muslim Family Laws Ordinance, 1,961 provides that where no details about the mode of payment of dower are specified in nikahnama or the marriage contract, the entire amount of the dower shall be presumed to be payable on demand. So, the learned Judge of the Court of appeal below rightly decreed the suit as a whole, directing for payment of entire amount of dower.

 

Wahed AH vs Moslema Khatun 14 BLC 293

 

Section 115

 

In view of the provisions laid down in section 205 of the Hindu Law where a widow or other limited heir alienates property inherited by her in contravention of the provisions of section 178, the next reversioner, though he has no interest higher than a chance of succession, may institute a suit in her lifetime for a declaration that the alienation is not binding on the reversioner, and if the facts are proved, the Court may pass a decree declaring that the alienation is not valid beyond the lifetime of the limited heir.

 

Ananta Kumar Biswas vs Ram Krishna alias Shaduram Brahma alias Mondal 14 BLC 300.

 

Section 115

 

After going through the judgment of both the Courts below and on perusal of the evidence on record that there is no error of law to have been committed by the learned Appellate Judge leading to error in his decisions occasioning failure of justice. There is also no misreading or non conside­ration of evidence on record. Moreso, the impugned judgment being a judgment of affirmance and the learned Appellate Judge being the last court of fact after discussing the evidence on record and the judgment of the trial Court being satisfied concurred with the findings and decisions of the trial Court, which do not call for any interference invoking the revisional jurisdiction.

 

Abdul Gafur vs Mozaher Ali Pramanik 14 BLC 335.

 

Section 115

 

It is well nigh to remember that High Court Division in the exercise of power under section 25 of The Small Causes Act will interfere only when a substantial injustice has been caused to a party by the order/judgment/decree under protest in Revision Petition. It is conveniently posited that power conferred upon High Court Division for interference under section 25 of The Act of 1887 is more extensive than power exercised by the High Court Division under section 115 of The Code of Civil Procedure.

 

Amina Begum BA B.Ed vs Md Jobayer Alam Barker 14 BLC 339.

 

Section 115

 

Since the vested property authority did not prefer any appeal or revision against the judgment of the Trial Court, meaning that they are not aggrieved with the decision of the trial Court rather they conceded with the decision of the trial Court, the defendant No.3 claiming himself as lessee under vested property authority though he failed to prove such lease by submitting any document of granting such lease has got no locus standi to file the appeal. He is stepping in the shoes of his lessor but the lessor did not come forward to prefer any appeal or revision, meaning that the lessor conceded with the judgment of the Trial Court or with the claim of the plaintiffs.

 

Sampan Kumar Sarkar vs Fazaluddin 14 BLC 213.

 

Section 115

 

On appraisal of evidence of PW1 Moijan Bibi, and it appears that there is no specific evidence that she did not put her left thumb impression in the register book and she also failed to show that her signature appears in the registered book is not her signature. Therefore, learned Judge of Court of appeal below as a final Court of facts came to a definite findings that deed of gift and Heba-bil-Ewaz were executed by plaintiffs which is correct. The trial Court without con­sidering the materials on record, particularly transfer of Land by deed of Arponnama in favour of plaintiffs, decreed both the suits which are not correct.

 

Aleton Bewa vs Md Mher AH Sonar 14 BLC 553.

 

Section 115

 

Some of the PWs including PW 1 and DWs including the Advocate Com­missioner who categorically admitted/ testified about the existence of a pathway over the 2nd schedule suit land. Besides the contesting defendants contended that there was an unregistered 'Ekrarnama' relating to the disputed road, which, in fact, was not denied by the plaintiffs and the defendants proved the said 'Ekrarnama' without any objection from the plaintiffs' side. So, the findings of the lower Appellate Court on the point of pathway over the ejmali land is based on non-consideration of the evidence on record.

 

Abdur Roufvs Abdul Odued Jaigirdar 14 BLC 805

 

Section 115

 

The revisional Court has ample jurisdiction to review the concurrent findings of Courts below in order to see whether those Courts have committed any error of law which resulted in any failure of justice. It is the allegation of plaintiffs-petitioners that both the trial Court and the appellate Court failed to assess both oral and documentary evidence and to misconceive the law bearing with the case, In the recitals of the deeds dated 31-3-1940 and 18-6-1941 marked Exhibits 2 and 3, there is clear assertion that the vendors of the deeds executed the same for repaying the debt and they categorically asserted that they or their successors would not claim the suit land in future. After such assertion, the claim of the defendants that the vendor did not deliver possession to the vendee does not lie. The defendants have totally failed to show any evidence that the possession of the suit land were not delivered on the basis of those deeds. There is illegality in the impugned judgment occasioning failure of justice to justify interference by this Court exercising revisional jurisdiction under section 115(1) of the Code of Civil Procedure.

 

Ekramullah Choudhury vs Shaficjur Rahman 12 BLC 90.

 

Section 115

 

The judgment of lower appellate Court transpires that in arriving at its finding the said Court carefully considered the material facts and circumstances of the case and the evidence on record both oral and documentary including the registered deeds. The learned Counsel for the defen­dant-respondent-petitioner could not point out any error or illegality or infirmity of law in the Judgment passed by the lower appel­late Court. And the case having been conclu­ded on finding of facts, as such, no interf­erence is called for in revision under section 115(1) of the Code of Civil Procedure.

 

Khoda Baksh Biswas vs Nabir-un-nessa 12 BLC 100.

 

Section 115

 

In view of the decision given by the Appellate Division, the High Court Division can enter into the entire evidence of both the parties as admittedly, the Courts below have given their finding without considering the entire evidence of the defendant of Title Suit No. 23 of 1992 and the evidence of plaintiffs of Title Suit No. 22 of 1992.

 

Tara Bibi alias Tahera Begum vs Salma Rani 12 BLC 115.

 

Section 115

 

Since the father of the defendant was not party in the original suit, so he has no locus standi to file this revision. The revisional Court acting under section 115 of the Code of Civil Procedure has ample jurisdiction to see the legality and propriety of the impugned order of the learned District Judge. The learned District Judge, Nilpha-mari, committed an error in his decision occasioning failure of justice. The judgment and order dated 6-3-2004 passed by the learned District Judge is set-aside and the judgment and order dated 17-5-2003 passed by the trial Court is affirmed.

 

Emdadul Haque (Md) vs Feroja Akhter 12 BLC 245.

 

Section 115

 

In the present case, the plaintiff could not prove by adducing evi­dence that fraud was practiced on him when the Nikahnama was registered. It is very much clear from the materials on record and the evidence of witnesses that the plaintiff and defendant eloped from their houses and stayed in various places against which the defendant's father filed a complaint with the local police station and the plaintiff's brother was detained and subsequently, at the inter­vention of the local Union Parishad Chair­man, the brother of the plaintiff was released and the local Chairman held arbitration to resolve the dispute. The plaintiff's witnesses also admitted about the marriage. The Courts below found that the marriage took place between the parties which was consummated as both the parties lived together for some time as husband and wife. In view of the concurrent findings of the Courts below based on materials on record and on evidence presented before the Courts, the findings of facts of the lower appellate Court cannot be disturbed in the absence of error of law or procedure affecting merit of the case,

 

Abul Kalam Gazi vs Nurunnahar (Shantu) 12 BLC 492.

 

Section 115

 

Since the decisions arrived at by both Trial Judge and Appellate Judge have been vitiated by error of law, those cannot claim any immunity from being attacked in exercise of Revisional Jurisdiction envisaged under section 115 of the Code. Interference is, therefore, warranted.

 

Kartik Chandra Mondol vs Zoynal Dewan 12 BLC 652.

 

Section 115

 

Exploration of decisions recorded by Courts below does not at all appear that there had been misreading of evidence or those went against weight of evidence and materials on record or it has been founded on any misconception, mis­application and misapprehension of law or mis-interpretation of any material document or otherwise it is perverse being contrary to law and evidence on record and those suffer from patent wrongness, legal dodderiness and waywardness and, also, flag rant error of law. Decisions rendered, reasons counted in recording reasons and conclusion reached by Courts below appear to be well founded and firm grounded and discreet. No exception can be taken to those. No interference, therefore, is called for.

 

Syeda Helali Begum vs SkmtiMary Cruez 12 BLC 661.

 

Section 115

 

Decisions of Court of Appeal being last and final court of fact are not open to interference in Revisional Jurisdiction under section 115 of the Code unless it is shown that decisions have been based upon gross misreading of evidence or those have been founded on misconception or misapplication or misapprehension of law or of any mis-interpretation of any material document or otherwise perverse being contrary to law, evidence and materials brought on record.

 

Syed Shamsul Alam vs Syed Hamidul Huq 12 BLC 777.

 

Section 115

 

Petitioner has become a sufferer because of the mistake of the learned Counsel and subsequent orders of the Courts below in rejecting the plaint in place of returning the same. Accordingly, I would like to give an opportunity to the petitioner to ask for readdress of his grievance before the District Judge.

 

Khorshed All vsAdmistratator of Waif 17 BLC 210.

 

Section 115

 

A stranger to a suit or a proceeding is not prohibited by the Code from filing an appeal from an order passed therein. There is no express provision permit­ting such party to prefer an appeal against such an Order. This omission, however, can­not be understood to amount to prohibition. The Court ought not to act on the principle that every procedure is to be taken a prohi­bited unless it is expressly provided for.

 

Ismail Hossain vs Shakhina 17 BLC 320.

 

Section 115

 

In the absence of cogent reasoning or of clear findings on any issue of fact and law in the impugned judgment, this Court in revision has been hard pressed to best understand the correctness or general drift and gist of the impugned judgment. This Court fails to see why the impugned judgment or reversal is so marked by its back of elaboration to any level of satisfaction of the reasons for reversing the trial Court's judgment.

 

Jalal Sikder vs Shahjahan Mridha 17 BLC 431.

 

Section 115

 

When the defendants alleged that the Dakhilas are not genuine documents, the onus shifted on the defen­dants to prove the plea that the Dakhilas are not genuine documents. A registered kabala is an evidence of title which will prevail over the other records of rights as such until and unless such kabala is cancelled on a specific allegation of fraud by any Civil Court in an appropriate Civil suit.

 

Sultan Mia vs Mokbul Hossain Mollah 17 BLC 445.

 

Section 115

 

Before institution of suit title of plaintiffs were clouded, for which they failed to seek their redress in any manner hatsoever. Suit for permanent injunction is not maintainable.

 

Bangladesh vs Sirajul Islam 17 BLC 804.

 

Section 115

 

It is contended on behalf of the petitioner that the plaintiff if at all appeared in the Viva-Voce examination. She ought to have submitted an application in the form of an appeal before the Vice-Chancellor of Dhaka University under Article 52 of the Dhaka University Ordinance, 1973 (President Order 11 of 1973). The word may used in Article 52 should mean to be treated as shall. The question of maintainability decided in a case in writ jurisdiction the principle enunciated in that decision is applicable in the instant case.

 

University of Dhaka vs Shikha Rani Roy 11 BLC 530.

 

Section 115

 

As it appears the High Court Division fell in error in not considering that due to the death of Mr Jitendra Narayan Deb, Advocate (since deceased), the sole engaged lawyer of the petitioners, in the eye of law it will be demanded that the Civil Revision No. 10067 of 1991 stood "Not Ready" on 20-8-2000 and in the above circum­stances notice in N-10 Form should have been issued to the petitioners. The judgment and order dated 2-11-2000 passed by the High Court Division cannot be sustained. The Rule is restored to its file and number.

 

Ruhitar Rahman vs Satish Chandra Roy Chy 12 BLC (AD) 171.

 

Section 115

 

The High Court Division found that the plaintiff is a teacher of Govern­ment Primary School and was elected as the General Secretary of the Government Pri­mary School Teachers' Association and has been functioning as such. Whereas the defendant No. 1 is not a teacher of any Govern­ment Primary School or any other Primary School and without being a teacher of any Primary School he declared himself as the President of Bangladesh Primary Teachers' Association. The High Court Division also observed that the appellate Court being a final Court of fact arrived at a decision that the defendant No. 1 failed to prove his case by producing cogent and reasonable evidence and declined to interfere with the concurrent findings of the Courts below.

 

Abul Kalam Azad vs Bangladesh 13 BLC (AD) 138.

 

Section 115

 

In any view, if the objection with regard to maintainability of the suit even if not raised at any stage may be raised for the first time before the revisional Court if a decision of the said issue may be reached on admitted facts or, in the other words, the issue with regard to maintain­ability of a suit may be decided by the revisional Court on the basis of facts which are not disputed.

 

joyanta Kumar Datta vs Dilip Ranjan Datta 13 BLC 376.

 

Section 115

 

Finding reached by Trial Judge perilously borders on perversity. Learned Trial Judge, also, failed to take into grip that in Title Suit No. 306 of 1978 fourth-twelfth defendants-opposite parties had been plaintiffs and in plaint they described Hari Rani Basak as the daughter of Kala Chand Basak. Learned Appellate Judge, also, committed the same error in finding that no documentary evidence had been produced in Court in proof that plaintiff was daughter of CS recorded tenant Kala Chand Basak. Learned Appellate Judge, also, was in patent error in holding that plaintiff could not ourt that she is the daughter of Cadastral Survey recorded tenant Kalachand Basak. Kalachand Basak was not the recorded tenant of Cadastral Survey Record of Right rather, his father Krishna Chandra Basak was Cadastral Survey recorded tenant and this is a manifestation of non-application of mind on the part of learned Appellate Judge.

 

Hari Rani Basak vs Bangladesh 13 BLC 1.

 

Section 115

 

Appellate Judge as last Judge of fact was duty bound to come to a finding on discussion on materials on record, whether the predecessor grandfather Krishna Chandra Basak and father Kala Chand Basak were Enemies and whether the property could be brought under the mischief of Enemy Property laws and whether treating of property as Enemy Property suffered from illegality, but Appellate Judge did not at all touch the vital issue involved in the case and, thus, committed a grave error of law by which a failure of justice has been occasioned.

 

Hari Rani Basak vs Bangladesh 13 BLC 1.

 

Section 115

 

In the case in hand no payment of compensation had been made not to speak of whether it was within one year or more than one year. In the absence of evidence on the part of defendant-petitioner and defendant-opposite-party in respect of payment of compensation money of acquired suit property the proceeding in respect of acquisition stood abated under section 12(1) of the Ordinance of 1982. The suit property was not utilised by requiring body and remained unused and suit property under the provision of section 17(2) of the Ordi­nance of 1982 is required to be released by defendant-petitioner Rajdhani Unnayan Kartripakha as well as defendant-opposite-party, Government of the People's Republic of Bangladesh and hand over to plaintiff-opposite-party who stepped into the shoes of owner vendor PW 2 on strength of a deed of conveyance dated 22-9-1994. Defendant-peti­tioner and defendant-opposite-party cannot keep suit property unused and unutilised for years and decades and cannot deny right of plaintiff-opposite-party to get suit property released. The decisions of Trial Judge and Appel­late Judge are concluded by concurrent decisions of fact warranting no interference by the High Court Division in the exercise of Revisional Jurisdiction under section 115 of the Code.

 

Rajdhani Unnayan Kartripakha vs Abdul Zakir 13 BLC 793.

 

Section 115

 

The High Court Division has opined that in the application for restoration, it was asserted that the tadbirker Mr Joydev Chandra Saha had been bed ridden for about six months and, as such, he could not come to Dhaka to take necessary steps after service of notice in Form N-10 upon the petitioners. But this assertion does not hold good in that the petitioners slept over the matter even after expiry of six months on the ground of alleged illness of the Tadbirkar and no step was taken by the petitioners to engage a new Advocate on their behalf till discharge of the Rule for default on 10-1-2007.

 

Joy Dev Saha vs Haridas Saha 14 BLC (AD) 127.

 

Section 115

 

The High Court Division as it appears reversed the findings of the appellate Court and the trial Court as well ithout adverting to the reasoning given by the Court of Appeal which is final Court of fact. The impugned judgment is not a proper judgment of reversal. The findings of the Court of Appeal on question of fact is binding upon the High Court Division unless it can be shown that those findings are perverse. In the instant case there is no such finding by the High Court Division regarding the findings of the Court of appeal on question of fact.

 

Abdul Quddus Matabbar vs Yousuf All Bayati 14 BLC (AD) 132.

 

Section 115

 

Section 17 of the Muslim Marriages and Divorces (Registration) Rules, 1975 provides that a Nikah Registrar shall not hold any salaried appointment other than an appointment in a mosque or in a non-Government school or madrasha situated within the area for which he has been licensed. It appears that plaintiff was granted licence to act as a Nikah Registrar at Ward No. 17 but he has been acting as imam in a mosque situated at Ward No. 4. So, in my view, plaintiff was not acting as a Nikah Registrar at Ward No. 17 in accordance with law till his resignation dated 11-11-2003.

 

Ayub Ali Khan vs Md Abdur Raqib 15 BLC 46.

 

Section 115

 

Admittedly Taka 40,000 paid by defendant as advance is still lying with the plaintiff. Until entire amount of advance money taken by plaintiff at the time of creating subsequent tenancy, was adjusted, the defendant could not be said to have defaulted in paying rent within the meaning of aforesaid sections. As long as the plaintiff had the unadjusted amount in his hands, he could have adjusted it towards the payment of rent for the months of Sravan, 1402 BS. In view of the Provisions of section 18(5) of the Act, 1991 which do not seem to have been contravened by the defendant, no default appears to have been made by him in paying the rent for the aforesaid period.

 

Radha Shijam Barker vs Nani Gopal Sen 15 BLC 639.

 

Section 115

 

Since there is no mis­reading of evidence so far it relates to limitation effecting the ultimate decision of the Courts below, The concurrent finding arrived at by the Courts below on question of limitation requires no interference by this Court.

 

Khalilur Rahman Talnkder vs Khondaker Rezaul Karim Faruk 15 BLC 739.

 

Section 115

 

It is well settled that under Order XVIII, rule 17 CPC the Court has ample power to re-call at any stage a witness who has earlier been examined, cross-examined and discharged. This discretionary power can be exercised at the instance of a party or even suo motu. But such discretion cannot be extended beyond the law of evidence as described under section 138 of the Evidence Act to allow a party to the suit who did not cross examine a witness in time and without any excuse to avail his right to cross-examine the witnesses, the whole purpose or object for such discretion is to advance justice not to cause injustice.

 

Abdul Aziz Howlader vs Seratan Bibi 15 BLC 461.

 

Section 115

 

Both the Courts below failed to consider that the divorce has already taken effect and the wife can get not only her entire dower money but also with her iddat allowance.

 

Nurul Islam vs Nur Ayesha Begum 16 BLC 10.

 

Section 115

 

The point of misreading and nonreading of evidences on record being agitated by Mr Mazumder but unfortunately at the time of issuance of the rule the petitioner did not obtain the order calling for the lower Court record and since the lower Court record is not before the Court, I cannot go through the evidences on record and I have to bend upon the veracity of the judgment of both the Court below and after going through both the judgment of the Courts below, I find that both the judgment are well discussed and well founded judg­ment.

 

Fazal Hossain vs Helal Mia 16 BLC 75.

 

Section 115Guardianship and Cus­tody of Children—

 

Admittedly since 5-4-2009, children are in custody to the plaintiff and there is no allegation against their welfare. It is true that in Muslim Law father if alive is the natural guardian of the persons and property of his minor child. He does not require an order of the Court to support his right to act as guardian in any matter, but when the Court is satisfied that it is for welfare of children that an order should be made for their custody the Court may make an order accordingly. In such view of facts, the parties were directed to maintain status quo in respect of custody of children.

 

Abdul Quddus vs Syed Moinul Ahsan 16 BLC 166.

 

Sections 115 and 151

 

The patta deed dated 9-4-1951 in favour of predecessor of defendant-petitioner by Maharaja of Tripura was accepted as valid patta deed by highest court of the land. Venture undertaken from the side of plaintiff-opposite-party i.e. Government of Bangladesh, to reopen the issue which was finally and conclusively decided by judicial verdicts of last and highest court of the country, cannot be allowed to be proceeded with and attempt by way of a presentation of a plaint is liable to be nipped in the bud at its inception so that no further time is consumed on a fruitless litiga­tion.

 

Abdul Matin vs Bangladesh 13 BLC 30.

 

Section 115—Order XLI, rule 31—

 

Learned Appellate Judge miserably failed to make thread bare discussion of the evidences on record and after going through the judg­ment it appears that the learned Appellate Judge only partially discussed the evidences of PW 1 and 2 and he did not evaluate the entire evidence-on-record andfor which the judgment suffers from misreading and non-reading of evidences on record.

 

Jahirul Islam vs Rokeya Begum 16 BLC 225.

 

Section 115(1)

 

In view of the legal proposition settled by our Appellate Division the judgments under challenge cannot be said to have been based on misreading or non-consideration of evidence or misinter­pretation of any material document. The finding of facts arrived at by the Courts below appear to have been based upon consideration of legal evidence and materials on record which do not suffer from any perversity.

 

Marjina Khatoon vs Shamsunnahar 14 BLC 289.

 

Section 115(1)

 

In the present Artha Rin Adalat Ain, 2003 the legislature by incorpo­rating section 44 has expressly debarred filing revisional application against and inter­locutory order passed by the Adalat pending execution proceeding. The impugned orders passed by the Adalat under section 34 of the Ain, 2003 in the present cases are, no doubt, interlocutory orders. Accordingly, in view of section 44 of the Ain those orders are not revisable under section 115(1) of the Code of Civil Procedure. As such, all the respective Rules issued under section 115(1) of the Code of Civil Procedure are liable to be discharged as being not maintainable.

 

Syed Monjur Morshed vs Agrani Bank Ltd 14 BLC 501.

 

Section 115(1)

 

In the instant case, the suit was decreed by the trial Court and such decree was affirmed by the appellate Court also. The judgment-debtor defendant has got ample scope to file revision before this division if he feels aggrieved with the judg­ment of the appellate Court, but without filing any revisional application the defen­dant filed the Review Case in a manner which is apparently not legal, and it is also apparent from the application (Annexure-A to the revisional application) that the learned Joint District Judge had been proceeding with the Review Case in an illegal manner. On perusal of the cited decisions it appears that the review petition which is numbered as a Miscellaneous Review Case itself is not maintainable and there is no illegality with the impugned order.

 

Bangladesh represented by the DC, Mymensingh vs Md Golam Ambia (Harun) 14 BLC 710.

 

Section 115(1)

 

The argument advanced by the learned Counsel has also legal value that the defendant claimed the suit land through a pattanama which was executed and registered by landlord's predecessors of the plaintiff Noor Jahan Begum and Asam-uddin Patwary granting some lands to Ashraf Ali Bepari and Yosuf Ali Bepari. In the putta the Zamindars (who were also illite­rate) reserved the right of transfer by the pat­tandars in favour of the Zamindars or their heirs and none else. The transfer by the Pattandars or by their heirs are prohibited. In the pattan name the transfer made by the pattandar or their heirs are illegal and void and by the transfer of the pattandars or their heirs the transferees got no title in the pro­perty. This aspect of law has not been taken into consideration by the Courts below which is vital point of law. On the basis of above facts I find perverse in the judgment of the Courts below, non-reading of the state-ments of the witnesses and wrong explanation of Municipal Law related to the case. So, the judgments of the Courts below should be interfered by invoking revisional jurisdiction.

 

Enayetullah Patwary vs Siddiqueullah 14 BLC 737

 

Section 115(1)

 

Since the plaintiff did not put his signature in the Bainanama it cannot be treated as Bainanama or a contract in the eye of law which is not sustainable in law. Because in Bainanama the name and address of the plaintiff has been clearly men­tioned as first party vendee and the name and address of the defendant No. 1 has been mentioned as second party vendor. Since the plaintiff himself or anybody else is not denying or challenging that the plaintiff is not first party vendee as such, the signature of plaintiff in the Bainanama is redundant. Moreover, this question was not raised by the defendant-respondent-petitioner before the trial Court and appellate Court. This question was raised for the first time before the revisional Court by the learned Counsel for the petitioner which cannot be legally tenable.

 

Abu Tara vs Md Abdur Rahim Khan 14 BLC 795.

 

Section 115(1)

 

It appears that the findings arrived at by the Courts below having been rested upon consideration and discussion of legal evidence and materials on record and also on a correct and proper analysis of the legal aspects involved in the case and the findings being findings of fact are not liable to be disturbed by the High Court Division in exercise of power under section 115(1) of the Code of Civil Procedure.

 

Abdul Awal vs Abdul Hai 12 BLC 487.

 

Section 115(1)

 

The High Court Division without adverting to the findings given by the court of appeal regarding pattan by Basanta Kumar in favour of the plaintiffs by dakhilas, subsequent execution of unilateral kabuliyats by plaintiffs in favour of Basanta Kumar and possession of the defendants in the suit land reversed those finding on reassessment of the entire evidence. Accor­dingly, the High Court Division committed error of law in making the Rule absolute, which, requires interference by this Court.

 

Promad Chandra Barman vs Khodeza Khatun 112 BLC (AD) 225.

 

Section 115(1)

 

It was the duty of learned Assistant Judge to maintain his injunction order dated 29-1-2004 unless that order is disturbed by any superior Court but without doing so he has violated his own order and has violated the order of the High Court Division. It is the consistent view of our Appellate Division that in an appropriate case the Court in exercise of its inherent power can issue a temporary injunction in mandatory form to restore the status quo ante in the suit. The learned Assistant Judge, Madhabpur is directed to restore possession in 0.033 acre of land of Plot No. 683, khatian No. 279, Mouza Sultanpur, Police Station Madhabpur, District Habiganj, in favour of the petitioner within 7(seven) days from the date of receipt of this order. The learned Assistant Judge is also directed to dispose of the suit as early as possible preferably within l(one) year from the date of receipt of this order.

 

Upendra Chandra Paul vs Md Abdul Quadir Chowdhury 11 BLC 494.

 

Section 115(1)

 

The trial Court has recorded a finding that the defendants dispossessed the plaintiffs from the suit land on 4-12-1997 and 7-4-1998 respectively though the trial Court did not assign any reason for such finding and hence the defen­dants failed to discharge the onus that they were in possession of the suit land after 28-6-1992 till 4-12-1997 and 7-4-1998. By such facts the plaintiffs succeeded in proving that they were in possession of the suit land from 28-6-1992 and they were dispossessed therefrom on 4-12-1997 and 7-4-1998. The suit was filed on 14-7-1998. The suit was therefore, filed within 6 months from the date of the dispos­session of the plaintiff from the suit land. There is no error of law or infirmity in the impugned decision of the learned Sub­ordinate Judge calling for interference in the exercise of power under revisional juris­diction under section 115(1) of the Code of Civil Procedure.

 

Sabar Mia (Md) vs Abdul Mannan Sarker 11 BLC 609.

 

Section 115(1)

 

Both the court below totally misread and misconstrue the patta-Exhibit 14 and failed to consider that the patta is not original one but a certified copy and it was not produced from proper custody as such, it has got no evidentiary value in the eye of law. The patta in question has wrongly accepted as evidence without any proof of its execution.

 

Gour Chandra Mohanto Babu vs Md Abu Bakar Siddique 17 BLC 495.

 

Section 115(1)

 

Orders passed by the executing Court are interlocutory orders, and, as such, revision under section 115 of the Code is not maintainable.

 

Bodiuzzaman Milan vs Bangladesh Commerce Bank Ltd 17 BLC 426.

 

Section 115(1)

 

Finding of the Court of appeal below on title and possession cannot be said to be not based on the evidence on record and if so, they are now binding in revision.

 

Maleka Khatun vs Manor Ali 17 BLC 378.

 

Section 115(1)

 

It is not possible to ascertain the basis of the certificate given by the Janata Bank about the prevailing rate of interest. It is difficult to ascertain whether the certificate given by Janata Bank is correct or the certificate given by the Bangladesh Bank is genuine. It would be proper to direct the lower Court to ascertain which certificate is genuine and correct, whether the certificate given by the Janata Bank or the papers sub­mitted by the petitioners in the supplemen­tary affidavit.

 

Gulf Shipping Lines Limited vs Trading Corporation of Bangladesh 17 BLC 643.

 

Section 115(1)

 

The findings of fact whether concurrent or not arrived at by the lower appellate Court are not open to inter-ference as a revisional Court except in certain well-defined exceptional circum-stances, such as non-consideration or misreading of material evidence affecting the merit of the case. The decisions of Court of appeal being last and final Court of fact are not open to interference in revisional jurisdiction unless it is shown that decisions have been based upon gross misreading of evidence or those have been founded on misconception or misinterpretation of any material document or otherwise perverse being contrary to law, evidence and material brought on record.

 

Sukur Ali Biswas vs Sukurjan Bibi 17 BLC 793.

 

Section 115(1)

 

Since the Special Judge is a 'Court' such Court is sub-ordinate to the High Court Division. Any order passed by a Special Judge is amenable to the High Court Division under section 115 of the Code of Civil Procedure.

 

Government of Bangladesh vs Abdul Motaleb 17 BLC (AD) 50.

 

Section 115(1)

 

The revisional Court on consideration and appreciation of the evidence on record including DP Parcha filed before it found concurrent findings of the Court of facts correct.

 

Syed Gulam Shariar vs Md Abdul Mannan 17 BLC (AD) 112.

 

Section 115(1)

 

A judicial order devoid of reasoning causes error of law but mere error of law cannot be a ground for inter­ference unless it has occasioned failure of justice.

 

Akram Ali Pk. (Md) vs Yasin Ali 17 BLC (AD) 135.

 

Section 115(1)Restoration of Rule

 

The petitioner did not take any steps within reasonable time but after a lapse of about .7 years on the plea that the matter was misplaced, an application for restoration was filed. The High Court Division did not find the explanation satisfactory. The suit of the plaintiffs was decreed on 31-8-1985 and the appeal there from was dismissed on 27-8-1990. The Rule was discharged in 1992 but there was not explanation for unusual delay thereby accruing a vested right in the respondent. The High Court Division in exercise of its discretion rejected the prayer for restoration of the Rule discharged for default.

 

Bangladesh vs Abul Hashem 17 BLC (AD) 172.

 

Section 115(1)

 

The Election Appellate Tribunal appears to have applied his mind in the facts and circumstances of the case and the evidence on record keeping in view that there was a difference of only one vote bet­ween the petitioner and the opposite-party No. 1 and admittedly 5 ballot papers, which were duly cast during election, were found missing and on consideration of these facts the Election Tribunal came to the conclusion that it would be proper, for ends of justice, if the ballot papers are recounted in presence of the concerned parties. There is no illegality or infirmity in the impugned decision. The Election Tribunal shall consider the gunny bags before opening them to satisfy itself that the gunny bags were not tampered with at any time after the election result was declared.

 

Khalilur Rahman (Md) vs Md Alam Bepari 13 BLC 36.

 

Section 115(1)

 

The court below mis­read and non-considered the plaintiffs' witnesses, specially PW 2 and 3. It further appears that Clause-O of section 108 of the Transfer of Property Act was not complied with and the tenant defendant acted contrary to it and changed the leasehold property from showroom to a factory. The property cannot be used for a different purpose from the one contemplated under the lease agree­ment.

 

Afzalul Haque vs Md Abdur Razzaque 13 BLC 185.

 

Section 115(1)

 

The people of the Hill Districts of Chittagong are the citizens of this Republic and all laws which are now in force in Bangladesh should be equally applicable to the Hill Districts of Chittagong and in order to give benefit of those laws to the inhabitants of those areas, it is high time for the Executive Organ of the State to take necessary steps for setting up of Civil and Criminal Courts as per provisions of the Code of Civil Procedure, 1908 and the Code Of Criminal Procedure, 1898 forthwith and apply all other laws of the country to that area without any let or hindrance.

 

Ibrahim (Md) vs Ratan Chandra Nath 13 BLC 349.

 

Section 115(1)—Lease Period expired— Effect of

 

Mere filing an application before the concerned authority for extension of lease does not by itself confer any legal right to continue with the lease of fishery after expiry of the period of lease.

 

Harendra Chandra Barman vs Bangladesh 15 BLC 60.

 

Section 115(1)

 

Since the opposite parties have no objection if the petitioner is allowed to deposit the monthly rent for the case premise in the name of the opposite parties without any prejudice to them the petitioner should be allowed to deposit the monthly rent without any prejudice to the opposite parties. The House Rent Controller, Narayanganj is also directed to accept the monthly rent if deposited by the petitioner in accordance with the provisions of section 19(l)(ka) of the House Rent Control Act, 1991.

 

Ismail Hossain vs Syedur Rahman Molla 15 BLC 342.

 

Section 115(1)

 

The Nim-Howla interest of the plaintiff is an encumbrance which is not, ipso-facto, annulled by the revenue sale, but it is annullable at the option of the purchaser. The purchaser may annul under-tenure by institution of a suit or by any other suitable means.

 

Abdul Khaleque alias Abdul Malek vs Khorshed Alam 15 BLC 817.

 

Section 115(1)

 

The evidence of PWs shows that all the PWs in their respective evidence disclosed that the plaintiff-peti­tioners are in possession of the suit land. Therefore, in any view of the matter it can be safely said that the finding of the learned Assistant Judge that the plaintiffs could not prove their possession by adducing evidence over the suit land is, intact, not based on proper appreciation of the evidence and materials of the case.

 

Esahatj AH Mallik vs Mobarak Sheikh 16 BLC 144.

 

Sections 115(1) and 117

 

On a meticu­lous examination of the evidence on record, documents and other connected papers and after hearing the submission of both the parties it appears that if the case is sent to lower appellate Court for expeditious hear­ing of the appeals instead of sending the cases to the trial Court for fresh trial and for proper adjudication justice would be met.

 

ASM Ziaul Hoque vs Lutfar Rahman Molla 13 BLC 803.

 

Section 115(1)—Order V, rule 17— Order IX, rule 13

 

The prima facie onus is on the plaintiffs to have served the summons or notices upon the defendants but we do not find as discussed above that summons were served upon the aforesaid defendant Nos. 2, 3, and 8. I do not also find any order of service of notice dated 10-8-1986 as referred by the learned Judge. The rule is made absolute without any order as to costs and set-aside the judgment and orders of the Courts below, The application under Order IX, rule 13 is allowed and the partition suit No.1317 of 1985 is restored. The defendant petitioners are directed to pay legal expenses of Taka 10,000 to the plaintiff opposite parties within 2(two) months from the receipt of the notice from the Trial Court, failing which the order shall stand cancelled. The Trial Court is also directed to dispose of the suit within 6 months from the date of receipt of the records.

 

Abdul Wahab Barker vs Shahid Barker 15 BLC 522.

 

Section 115(1)(2)(3)(4)

 

The impugned order for recounting of the ballots not being an order of the Court of Assistant Judge but being that of the Election Tribunal, no revision at all would lie against the same under section 115 of the Code of Civil Procedure. Therefore, the present revisional application of the petitioner under section 115 of the Code of Civil Procedure is not maintainable.

 

Abdul Khaleque (Md) vs Md Abdul Maleque 11 BLC 424.

 

Section 115(2)

 

The ratio-decidendi of the cited decision shows that the purpose of the review is not the rehearing of the suit in order to correct the earlier findings of the concerned Judge himself. It appears that the learned District Judge interfered with the order of review passed by the trial Court on the ground that the said order is a non-speaking order. Thereafter, the learned District Judge elaborately examined the judgment passed by the Joint District Judge, in the suit considering the evidence on record as if he was dealing with a first appeal but without deciding the errors apparent on the face of the record. Apparently, the learned District Judge missed the scope of review under Order XLVII, rule 1 of the Code. Under such circumstances, the judgment and decree passed by the learned District Judge in exercise of his jurisdiction under section 115(2) of the Code, requires to be set-aside.

 

Shuhjahan (Md) vs Hamdon Nessa 12 BLC 727.

 

Section 115(2)

 

It appears that no revision now lies to the High Court Division against non-appealable order passed by the Joint District Judge, Senior Assistant Judge or Assistant Judge. Revision would only lie before the District Judge. It may be re-called that neither in the scheme of the Civil Courts Act, 1887 nor in the Code of 1908 there was any scope for the District Judge to exercise revisional power. It is only for the first time by Law Reforms Ordinance, 1978 the District Judge was given the revisional jurisdiction (Ordinance No. XLIX of 1978). But, subse­quently, this power was taken away by the Code of Civil Procedure (Amendment) Ordinance, 1983 (Ordinance No. XLVIII of 1983). But this power has now been again conferred on the District Judge by Act XL of 2003.

 

Joysna Ara Amin vs Sudhangshu Bimal Dhar 11 BLC 98.

 

Section 115(2)

 

On a scrutiny of the scheme of the laws it becomes obvious and clear that a Court which is not invested with appellate power over a matter in appeal is not intended to exercise its Revisional Jurisdiction. Only that court which has appellate jurisdiction can exercise revisional power as per law. Thus it is clear that a Court which cannot exercise jurisdiction over a matter in appeal is not authorised to exercise its revisional jurisdiction. It was not the intention of the legislature. Thus it is inconsistent with the scheme of the Code and the Civil Courts Act, 1887 to invest District Judge with revisional jurisdiction in matters where no appeal lies before the District Judge.

 

Joysna Ara Amin vs Sudhangshu Bimal Dhar 11 BLC 98.

 

Section 115(2)

 

The District Judge can exercise his power of revision under section 115(2) of the Code where his pecuniary jurisdiction in revisional matter is co­extensive with that of his appellate juris­diction, i.e. where the value of the subject-matter does not exceed the appellate juris­diction. Therefore, in the instant case the District Judge lacked inherent jurisdiction to entertain the revisional application against the order of learned Joint District Judge as the valuation of the suit is over five lac.

 

Joysna Ara Amin vs Sudhangshu Bimal Dhar 11 BLC 98.

 

Section 115(2)(3)(4)

 

In the background of the materials on record the High Court Division was not in error in discharging the Rule since in passing the order sought to be revised by the High Court Division no error as to important question of law was commit­ted by the courts below and consequent thereupon there was no failure of justice.

 

Sheikh Abdul Mazed vs Md Shomrej Ali Mandal 12 BLC (AD) 173.

 

Section 115(4)

 

Considering the facts and circumstances of the case, it would be just and proper to direct the plaintiffs to take delivery of the cargo from the two containers being container Nos. TCHU 2613312 and TCHU 2613375 within 2(two) weeks failing which the Customs Authority are to act as per sections 82 and 201 of the Customs Act and do the needful under the provisions of law.

 

Lloyds Triestino vs Astra Services Ltd 14 BLC 352.

 

Section 115(4)

 

The learned revisional Court concurred with the view expressed by the trial Court that the report of the Finger Print Expert is a mere piece of evidence to be considered along with other evidence which may be decided at the time of judgment and the trial Court committed no error on any important question of law resulting in erroneous decision occasioning failure of justice and this Court should not interfere with the impugned order of the Courts below.

 

Amena Khatun vs Md Ayub Khan 14 BLC 839.

 

Section 115(4)

 

Sitting under revision­al jurisdiction under section 115(4) of the Code it is very difficult to interfere with findings of the revisional Court below unless it is by passing judgment or order the revisional Court below committed an error of an important question of law resulting in erroneous decision occasioning failure of justice.

 

Mozaffar Ahmed Meah i'S Rafique Meah 17 BLC 659.

 

Section 115(4)

 

A fresh suit in which the decree obtained in an earlier suit and affirmed by the highest Court is challenged on the ground of fraud, the fresh suit is entertainable and the process of execution can be stayed.

 

Rasib AH vs Moniruzzaman Chy 17 BLC 459.

 

Section 115(4)

 

The judgments of the Appellate Division which affirmed the ex parte decree dated 23-6-1999 passed by learned Assistant Judge, Nawabganj in Title Suit No. 127 of 1997, it transpires that the impugned judgment dated 16-4-2006 passed by the learned District Judge is manifestly perverse. Because, the finding and decision of the Appellate Division is binding on all the courts below including the High Court Division under Article 111 of the Constitution of Bangladesh. The impugned judgment and order passed by the learned District Judge, Dhaka is absolutely wrong, illegal and manifestly perverse which is liable to be set-aside.

 

Nurjahan Begum vs AFM Abdullah 13 BLC 535.

 

Section 115(4)

 

We have carefully examined the provisions of section 6(5) and other related sections of the Ain, 2003 together with the application under Order XXI, rule 58 of the Code of Civil Procedure and it appears that the Courts below under the legal obligation rightly treated the claim of the petitioner as 3rd party's claim.

 

Harunur Rashid Bhuiyan vs Pubali Bank Ltd 15 BLC 458.

 

Section 115(4)

 

If a person can show his bonafide right and title apparent on the face of the record as well as can show fraud and suppression of fact can maintain an application in a proceeding even if he is not a party to that.

 

Abdul Jalil vs Shah Alam 16 BLC.

 

Section 115(4)—Order VI, rule 17—

 

The proposed amendment would settle the question whether during the pendency of suit the plaintiff was dispossessed. This will end all pending controversies between the parties and will not amount to a charge in the nature and character of the suit.

 

Mostafa Kami vs Md Kamal Hossain 16 BLC 598.

 

Sections 115(4) and 151Inexecutable decree need not be stayed

 

It is contended on behalf of the petitioner that the learned Joint District Judge has committed a funda­mental error in staying the judgment and decree in failing to notice that the decree that was passed was not executable and therefore, there was no scope for staying the judgment and decree passed in the earlier suit. It is further contended that the plaintiff-opposite parties were not parties in the earlier suit and therefore, they could not legally maintain an application for stay of the judgment and decree passed in the earlier suit.

 

Nazmun Mar Sheikh Eskender Ali 14 BLC 200.

 

Section 151

 

Having considered the submissions advanced by Mr Ahmed and having considered the somewhat odd cir­cumstances prevailing in the instant case, the High Court Division is of the view that for ends of justice, in exercise of its inherent power under section 151 of the Code of Civil Procedure, the judgment and order dated 3-11-2008 passed by the High Court Division requires to be recalled. Accordingly, the application stands allowed.

 

Asia Feed Mills Ltd vs Bangladesh Bank 15 BLC 827.

 

Section 151

 

The case reported in 1998 BLD 310 supports the case of the appellant to take recourse to inherent power of the Court as provided under section 151 of the Code of Civil Procedure to secure justice. In the instant case, it was categorically stated that the delay was due to wrong advice of the learned Advocate and that it appeared from the records of case below that the mandatory provisions for issuance of summons under the BSRS Order was not complied with and no notice was issued upon the opposite parties of the case, after receipt of the case records from the Artha Rin Adalat. Therefore, the ex parte disposal of Case under the BSRS Order, 1972 as made was not in accordance with law and the learned District Judge ought to have considered such special facts in passing the impugned order rejecting the application for condonation. The view that the learned District Judge proceeded with the application for condonation on wrong approach and thereby arrived at his wrong decision, which has occasioned failure of justice.

 

Meer Niaz Mohammad vs Bangladesh Shilpa Rin Sangstha 14 BLC 407.

 

Section 151

 

In Civil Revision No. 2573 of 2007, second execution case Was started on the basis of certificate issued by the Adalat under section 33(5) of the Ain in connection with Artha Execution Case No. 76 of 2001, having failed to auction sale the mortgaged property and that the impugned order of warrant of arrest was made after issuance of show cause notice upon the judgment debtors providing opportunity to give reply as to why they should not be detained in civil prison. The petitioners did not appear before the Court. But within a period of one month from the date of issuance of the impugned order they have filed the present revisional application and obtained the present Rule and an interim order of stay. Since the petitioners have not come with clean hand they cannot seek for exercising Court's inherent jurisdiction in the name of ends of justice. Further, considering the relevant provisions of Artha Rin Adalat Ain, 2003 and in the facts and circumstances of the case this Court cannot invoke its inherent power under section 151 of the Code of Civil Proce­dure.

 

Syed Monjur Morshed vs Manager, Agrani Bank Ltd 14 BLC 501.

 

Section 151

 

On consideration of the matter, it seems that without taking evidence it cannot be said whether the plaintiff-oppo­site party has any right, title and possession over the suit land. On this point the Court of appeal below also took the similar view. In the present case the petitioner claimed her right, title and possession in the suit land by way of a registered deed of gift dated 7-12-2005 and the sole defendant of the suit for ejectment categorically stated in his written statement that there is no existence of the plaintiff's suit shop after tornado in Novem­ber, 1990 and thereafter, the plaintiff did not construct any shop and since then there is no relationship between the plaintiff and defendant as landlord and tenant. In that view of the matter the presence of the petitioner is necessary as defendant to enable the Court effectualy and completely to adjudicate upon and settle all the questions involved in the suit.

 

Rokeya Begum vs Rezia Begum 14 BLC 747.

 

Section 151

 

The Adalat upon hearing both the parties allowed the application under section 151, CPC after vacating its pre­vious Judgment and Order No. 26 dated 17-5-2001. In view of the matter, the same Court/ Adalat cannot sit over its own judgment in the facts and circumstances of the present case. The same Court/Adalat cannot sit over its own judgment in exercising of its inherent power under section 151 of the Code of Civil Procedure where an alternative remedy is open to the aggrieved party. The Artha Rin Adalat Ain is a special law under which Courts have been constituted with their own forum of appeal. Therefore, there is no hesitation to hold that the impugned order does not reflect the true position of law. In such view of the matter, the Order No. 40 dated 17-10-2001 passed by the Adalat was beyond the power of the Adalat/Court and therefore, it must be held to have been passed without lawful authority and is of no legal effect.

 

Halima Akter vs Artha Rin Adalat 13 BLC 205.

 

Section 151

 

Petition presented by defendant-respondent for registration of Trade Mark in Class 9 manifests that tele­vision, VCD and two-in-one had been subject matters of registration. It has, thus, been admitted by defendant-respondent that Television is, also, included in Class 9 under Fourth Schedule of Trade Mark Rules. Since Trade Mark "CANON" in favour of plaintiff-appellant is registered in Class 9, Television, thus, stood included in Class 9. It does not lie in the mouth of defendant-respondent that Television is not registered in Class 9 under Fourth Schedule of Trade Mark Rules, 1963, in favour   of   plaintiff-appellant.  

 

Canon Kubushiki Kaisha  vs  Canon  Electronics industries Ltd 13 BLC 256.

 

Section 151

 

The Additional District Judge noticed several decision of our Courts and held that the Court is empowered to pass order under section 151 of the Code of Civil Procedure even where the application was made under Order XXXIX, rules 1 and 2 and this can be done for ends of justice and the High Court Division should not interfere against such order under its revisional juris­diction. The Additional District Judge also noticed the proposition of law as available under section 151 of the Code of Civil Procedure and held that mandatory injunc­tion would be available if dispossession had taken place during the pendency of the suit or during an order of ad-interim injunction. The Additional District Judge came to a clear finding that the plaintiff was in possession of the suit land when the order of status quo was passed and that the plaintiff was dis­possessed from the suit market during the pendency of the order of status quo. Accor­dingly, by judgment and order dated 7-8-2004 the Additional District Judge dismissed the revisional application and affirmed the decision of the trial Court allowing the prayer for mandatory injunction.

 

Abdul Baki vs Farooque Ahmed 13 BLC (AD) 128.

 

Section 151

 

A separate suit is not barred provided his remedies under the Artha Rin Adalat Ain stood barred at the time of filing of the suit for no fault of his own. The door of the Code of Civil Procedure is still open to the petitioner if he can prove that no summons was served upon him and he had no knowledge of the suit. The learned Advocate for the opposite-party No. 1 also admits that petitioner can seek his relief under Order IX, rule 13 of the Code if he can overcome the bar of limitation, ton Sina

 

Trust vs Arab Bangladesh Bank Ltd 11 BLC 154.

 

Section 151

 

The letter dated 3-6-03 of the plaintiff must be taken to be one to obviate release of the yarn shipped and that cannot forfeit the plaintiff in asking the bank for stopping payment of the price of at least remainder of the yarn not at all supplied. And defendant No. 1 is not entitled to any payment of the price of yarn which he never supplied. Plaintiff, therefore, no doubt has got an arguable case in respect of 22,030 Ibs of yarn. The view of the learned Joint District Judge that the plaintiff could not establish the balance of convenience and inconvenience in his favour cannot be accepted Appeal there­fore, succeeds.

 

Reya Sweaters (Pvt) Ltd vs Sephard Textiles (BD) Ltd 11 BLC 234.

 

Section 151

 

The remedy of injunction under section 151 of the Code is available to the judgment-debtor-cum-plaintiff of the fresh suit against a decree holder-cum defen­dant of that suit for the purpose of stopping the execution process of a decree which is under investigation in subsequent suit.

 

Rasib Ali vs Monir-uz-zaman Chowdhury 17 BLC 459.

 

Section 151

 

None of the OPWs stated a single word on the service of summons on defendant No. 1 but the records show that after the receipt of the return the trial Court fixed a date for ex parte disposal but before fixing the date, the trial Court has not looked into the service return. In the present case in a hot haste an ex parte decree was obtained which indicates that a fraud was committed upon the Court as well as upon the defen­dants and when a fraud is proved, then there is no question of limitation and time will run from the date when the fraud is detected and so, the question of limitation does not arise in the present case; even as, for argument's sake, it is conceded that the fraud was detected earlier, even then the Court is not debarred to interfere under section 151 of the Code.

 

Hyder All Mia (Md) vs Razin Begum 12 BLC (AD) 75.

 

Section 151—Order VII, rule 11— Order XXI, rule 58

 

The application filed by the opposite-party, Sonali Bank under Order VII, rule 11 of the Code of Civil Procedure for rejection of the Misc. Case under Order XXI, rule 58 read with section 151 of the Code of Procedure for realization of project loan was misconceived as well as not maintainable and, the executing Court erred in law in allowing the said application by the impugned judgment and order without properly applying his judicial mind into the facts and circumstances of the case and law bearing on the subject and the same has resulted in an error in the impugned decision occasioning failure of justice.

 

Bangla­desh Shilpa Bank vs Sonali Bank 16 BLC 566.

 

Section  151—Order I,  rule  10—

 

Innumerous decision our apex Court came to conclusion that only on the ground of non speaking order the High Court Division should not set-aside any order rather the High Court Division should examine the case of the parties in its entirety. In the present case in hand in appears that the present petitioner in no way connected with the claim of the plaintiff in any manner. The entire claim is against the principal defendant. By the application under Order I, rule 10 of the Code of Civil Procedure the plaintiff is trying to introducing a new case which is not sustain­able in the eye of law. Order I, rule 10 of the Code of Civil Procedure does not contem­plates any such provision. The trial Court committed an error in passing the impugned order occasioning failure of justice.

 

Chartered Bank vs Macneill & Kilburn 15 BLC 687.

 

Section 151—Order XXXIX, rules 1and 2

 

In this case, it is found that the ingre­dients for granting temporary injunction in favour of the plaintiff-appellant are wholly absent. Upon a careful scrutiny of the entire available materials on record, it appears that the plaintiff has neither a prima-facie nor arguable case in which the defendants cannot be restrained from making construction on the suit land taking the risk that entire building will liable to be demolished or the plaintiff would get the building if the plaintiff gets a decree in future. In the facts and circumstances of the case, we do not think it would be justified to continue order of status-quo which virtually means an order of injunction against the ongoing construction work in the suit property when the plaintiff does not have any prima facie arguable case.

 

Mahbub Hossain Khan vs Sheikh Salanddin Ahmmed 15 BLC 689.

 

Section 152

 

As it appears the High Court Division rejected the revisional appli­cation summarily holding that the prayer as made in the application dated 2-11-2004 for setting-aside the judgment and decree dated 25-7-2004 being not covered by section 152, CPC, the Court cannot allow such relief and further, the Court became functus officio after passing of the judgment and decree.

 

Dr. SM Yunus AH vs Joint District Judge and Artha Rin Adalat 14 BLC (AD)55,

 

Order I, rule 10(2)

 

Under Order I, rule 10(2) of the Code should be exercised for the ends of justice if it is required to transfer from one side to another. On the other hand, the refusal to do so prejudicially affected the aggrieved person by driving him to another suit.

 

Moinuddin (Md) vs Deputy Commissioner, Dhaka 17 BLC 799.

 

Order I, rule 1

 

The High Court Divi­sion correctly found that the suit in question is maintainable under Order I Rule 1 of the Code of Civil Procedure as the plaintiff's cause of action arose from the same transaction.

 

Zahur Ali Sk vs Jogendra Nath Samddar 16 BLC (AD) 35.

 

Order I, rule 8

 

Admittedly, the instant suit is a public interest litigation brought by the plaintiff in the interest of Rajshahi University. The trial Court complying the guiding principles for passing an order of temporary injunction and being satisfied he granted the temporary injunction arriving at dear prima facie finding in consideration of the documents filed that the appointments have been made in breach and violation of the circulars, rules and procedures, guide­lines, without public notification, etc. On the other hand, the appellate Court below has set-aside and vacated the same putting much emphasis on the humanitarian ground rather than looking into merit of rules and procedures, guidelines, budgetary provision, requirements, public notification, etc for making such huge appointments. It also appears that the finding of the appellate Court that the appointments were made in the necessity of the University is also without footing and not supported by any documents filed by the defendants.

 

Abu Aslam (Md) Advocate, Rajshahi District Bar Association vs Rajshahi University 11 BLC 294.

 

Order I, rules 9 & 10

 

Neither of the Courts below gave any finding that the suit is not maintainable for defect of parties nor the same was agitated before any of the Courts below by the contesting defendants-opposite parties. In that view of the matter, it cannot be said that the suit was bad for defect of parties and for that reason the Court could not effectively adjudicate the dispute in issue in the suit.

 

Musaraf Sultana vs Principal & Member-Secretary, Knnchipara Mahabidhyalays 12 BLC 505.

 

Order I, rules 9 and 10(2)—-

 

The High Court Division on the point of non-joinder of the parties has correctly held that the purcharers of the part of the suit property being the transferees of the defendant No. 1, will stand or fall along with the defendant No. 1 and so their absence the right, title and inferest of the parties may be effectively disposed of.

 

Ruhul Amin vs Official Liquidator, Mahaluxmi Bank Ltd 14 BLC (AD) 1.

 

Order I, rule 10

 

The petitioner being the defendants may still raise the question of liability which they did not raise at the time of framing of issues in the suit by filing an application under section 13 of the Artha Rin Adalat Ain, 2003 and the Court may, on such application, adjudicate upon the question of liability of the present petitioners as issues of law. The Adalat exercised its discretionary power under Order I, rule 10 of the Code of Civil Procedure in rejecting the application having found that the liability will be determined between the parties at the trial of the suit and the defendants are necessary parties. Therefore, the Adalat has exercised its jurisdiction justly. There is no substance in the Rule.

 

Prime Global Ltd vs Artha Rin Adalat 11 BLC 236.

 

Order I, rule 10

 

From the materials on record it is seen that opposite-party No.4 in his application for being added as the party in suit did not disclose any tangible case in support of her being a necessary or proper party in the suit for effective adjudication of the subject matter of the suit. In that state of the matter, the High Court Division did not commit any error in making the Rule absolute and thereupon setting-aside the order of the trial Court adding the opposite-party No.4 as defendant in the suit.

 

Khairunnessa vs Syed Mainul Haq 12 BLC (AD) 82.

 

Order I, rule 10

 

As per Order I, rule 10 of the Code of Civil Procedure no suit can be dismissed on the ground misjoinder of parties. Per Sharif Uddin Chaklader, J (dele-vering the main judgment)

 

MA Hashem vs Shamsul Kabir Humayun Reza 16 BLC 830.

 

Order I, rule 10

 

In view of the state­ments made by the learned Advocate of both sides it transpires that disputed questions of facts are involved in the proceedings and in view of the presence of such disputed facts those should be resolved once for all by the trial court itself upon adding the applicants as defendants in the instant suit.

 

Sanjib Kumar Ghosh vs Tarak Nath Ghosh 15 BLC 495.

 

Order I, rule 10(2)

 

The provision of addition of parties under Order I, rule 10(2) is an independent provision. One can be made party or one can be struck off from the pleading if so required. The law enjoins that a person who is necessary for the proper disposal of the case should be made a party as it has been in the present case. So where is the wrong? If we analyze the chain of facts we cannot say that under the grab of addition of party there is a substitution, which Mr Hoque contends to be a nullity and not sustainable under law.

 

Ferdous Amin Siam vs Artha Rin Adalat 17 BLC 195

 

Order I, rules 10(2)

 

None should be condemned unheard" but in the instant case while plaintiff's lawyer was allowed time and under such circumstance no order with regard to addition of party should have been passed at his back while his objection remained pending. And apart from that the Order by itself was a non-speaking Order without explaining any justification or rea­sons for allowing the application for addition of parties by regarding objection submitted by the plaintiff, is nothing but an exposition of failure to accord justice.

 

Tarek Hasan vs Abdul Malek 17 BLC 385.

 

Order I, rule 10(2)

 

The court at any stage of the proceeding either upon receiving an application from either of the parities or even suo moto can strike out the name of any defendant.

 

Philips Nelson Michael Marsham vs MNS Knit Wear Limited 17 BLC 603

 

Order I, rule 10(2)

 

On consideration of [he matter, it seems that without taking evi­dence it cannot be said whether the plaintiff-opposite-party has any right, title and posses­sion over the suit land. On this point the Court of appeal below also took the similar view. In the present case the petitioner claimed her right, title and possession in the suit land by way of a registered deed of gift dated 7-12-2005 and the sole defendant of the suit for ejectment categorically stated in his written statement that there is no existence of the plaintiff's suit shop after tornado in November, 1990 and thereafter, the plaintiff did not construct any shop and since then there is no relationship between the plaintiff and defendant as landlord and tenant. In that view of the matter the presence of the petitioner is necessary as defendant to enable the Court effectualy and completely to adju­dicate upon and settle all the questions involved in the suit.

 

Rokeya Begum vs Rezia Eegum 14 BLC 747.

 

Order I, rule  10(2)—Section 151—

 

Although normally in case of Specific Perfor­mance of Contract, 3rd party cannot be added as it relates between two parties of the agreement i.e. vendor and vendee but in some cases where there exists a special case, 3rd party can be added. Per Sharif Uddin Chaklader, J (delevering the main judgment) MA

 

Hashem vs Shamsul Kabir Humayun Reza 16 BLC 830.

 

Order I, rule 13

 

These evidences go to show that the fact of contract, writing of the agreement, execution of the agreement, payment of consideration as stated in the plaint have been contradicted by all the witnesses leading to the presumption that the case of the plaintiff was founded upon bundles of falsehood. In view of the above, it is held that no payment of consideration money was made by the plaintiff as alleged. SM

 

Kutub-uddin vs Aftab Ali (Captain Reid) Bir Pratik 13 BLC 782.

 

Order I, rules 19(2)—Addition of party

 

The proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conve­yance so as to pass on the title which resides in him to the plaintiff in order to avoid all controversies.

 

Begum Kohinoor Alam vs Md Yousuf Sikder 17 BLC 224.

 

Order II, rule 2

 

In this particular case, the defendants by filing an application under Order II, rule 2 of the Code have sought to obtain from the Adalat an order in their favour absolving them of their liabilities as guarantors on the basis of substantive provi­sions of the Contract Act. The application under Order VII, rule 10 of the Code appears to be a device to further delay the disposal of the suit and it is on this count alone that the petitioners ought to be precluded from raising a challenge to the jurisdiction of the Adalat. If the defaulting borrowers are allowed to circumvent the due process of law, then the intents and purposes of the legisla­ture i.e. the Parliament and the underlying public policy will be defeated and under­mined. Refusing the International Finance Corporation a right of action in Bangladesh under the Artha Rin Adalat Ain would be tantamount to denying that the Loan Agree­ments had conferred any right on it. The action for recovery of the loan in Money Suit No. 3 of 2000 before the Artha Rin Adalat No. 2, Dhaka should be allowed to proceed.

 

Mostaque Alam Chowdhury vs Court of Joint District Judge and 2nd Artha Rin Adalat, Dhaka II BLC 145.

 

Order III, rule 2

 

Upon a perusal of the documents as produced by and on behalf of the defendant Nos. 1,2,5 and 15 this Court finds no reason to question the scope and validity of the agency powers vested in the concerned Protecting and Declaring Agents to represent their foreign principals before this Court in all matters pertaining to and arising out of this Suit.

 

HRC Shipping Ltd vs 'MV Lady Fatima' (Admiralty Jurisdiction) 13 BLC 763.

 

Order III, rule 4

 

Sub-rule (1) of rule 4 of Order III of the Code of Civil Procedure has clearly referred to pleader and court and pleader definitely does not include a trade marks agent therefore, the bar of the said provision of law cannot be invoked in debar­ring a trade marks agent from representing a person to file TM-55. Moreso, the Act of 1940 being a Special Statute and section 80 thereof having clearly provided for representation of a person through a trade marks agent regis­tered in the prescribed manner the provisions of sub-rule (1) of rule 4 of Order III of the Code of Civil Procedure cannot be invoked. Besides, by now, it is a settled proposition of law that even a third party can prefer appeal if he is affected or aggrieved by any order or decree.

 

General Biscuits Belgie, Belgium vsPrince Hotel Bakery & Food Products (Statutory) 12 BLC 469.

 

Order V, rules 11, 12 and 15

 

Taking into account pleadings of parties, evidences, especially evidence of DW 3, and materials brought on record, especially Exhibit 1, service return, and fact and circumstances of the case, it appears that Siimmons upon plaintiff-opposite-party had not been served in accordance with law and service was invalid and same had been fraudulently suppressed.

 

Momin Miah vs Md Shafiullah Patiuari 13 BLC 86.

 

Order V, rule 17—Order IX, rule 13

 

The prima facie onus is on the plaintiffs to have served the summons or notices upon the defendants but we do not find as discus­sed above that summons were served upon the aforesaid defendant Nos. 2, 3, and 8.1 do not also find any order of service of notice dated 10-8-1986 as referred by the learned Judge. The rule is made absolute without any order as to costs and set-aside the judgment and orders of the Courts below, The applica­tion under Order IX, rule 13 is allowed and the partition suit No.1317 of 1985 is restored. The defendant petitioners are directed to pay legal expenses of Taka 10,000 to the plaintiff opposite parties within 2(two) months from the receipt of the notice from the Trial Court, failing which the order shall stand cancelled. The Trial Court is also directed to dispose of the suit within 6 months from the date of receipt of the records.

 

Abdul Wahab Sarker vs Md Shahid Sarker 15 BLC 522.

 

Order V, rules 19 & 19A

 

In passing an ex-parte decree Court must be satisfied that summons/notices were duly served on the loanee and to have a satisfaction on service of summons Court must consider the process servers report and also the deposition of the process server or postal peon. It is the duty of the petitioner, House Building Finance Corporation, in whose favour the ex-parte decrees were passed, to prove service of summons by producing reliable evidence. Rule 19 of Order V of Code of Civil Procedure cast a duty on Court to examine the postal peon/process server before passing an ex-parte decree. The Court ought to have considered the declaration of process server made under Rule 19A of Order V of Code of Civil procedure as evidence before ex-parte decree is passed. Ex-parte decree speaks some fishy fishy in obtaining the same.

 

Begum Shirin Akhtar vs Bangladesh House Building Finance Corporation 16 BLC 1.

 

Order V, rule 19A

 

Both the Courts below took into account pleadings of parties, evidences adduced from both sides, specially evidence of OPW 5 process-server and various orders recorded that the Suit came to positive decision that defendants-petitioners were well aware of original Suit and they were substituted on the death of their prede­cessor and summons had been duly served upon them. Court of appeal, also, found that Miscellaneous Case was rightly dismissed on a detailed discussion and it found no justification nor any ground to interfere with decision rendered by learned Joint District Judge which does not at all warrant inter­ference.

 

Syeda Helali Begum vs Shanti Mary Cmez 11 BLC 661.

 

Order V, rule 19B

 

None of the OPWs stated a single word on the service of summons on defendant No. 1 but the records show that after the receipt of the return the trial Court fixed a date for ex parte disposal but before fixing the date, the trial Court has not looked into the service return.

 

In the present case in a hot haste an ex parte decree was obtained which indicates that a fraud was committed upon the Court as well as upon the defendants and when a fraud is proved, then there is no question of limitation and time will run from the date when the fraud is detected and so, the question of limitation does not arise in the present case; even as, for argument's sake, it is conceded mat the fraud was detected earlier, even then the Court is not debarred to interfere under section 151 of the Code.

 

HyderAli Mia vs Razia Begum 12 BLC (AD) 75.

 

Order V, rule 19B

 

In the instant case, the appellant who was respondent in the Miscellaneous Appeal No. 7 of 1989 did not lead any evidence to show that the address at which summons was sent by registered post was not his address at the relevant time and that postal peon did not tender the registered envelope to him and, as such, there was no occasion for him to refuse acceptance thereof. In the afore state of the matter, the High Court Division was quite correct in holding that summons of the appeal i.e. Miscella­neous Appeal No.7 of 1989, was duly and properly served on the respondent No.2 in the Miscellaneous Appeal No.7 of 1989, who is the appellant in the instant appeal.

 

Abdur Rob Mollah vs Shahabuddin Ahmed 12 BLC (AD) 118.

 

Order V, rule 198(2)

 

The mode in which personal service of summons was effected on the respondent No. 2 of the Mis­cellaneous Appeal No. 7 of 1989 i.e. appellant herein, in the eye of law was not a due and proper service of summons or the petitioner in the Miscellaneous Case who was respondent No. 2 in the Miscellaneous Appeal since his mother was not his authorised agent to receive the summons of the Miscellaneous Appeal on his behalf.

 

Abdur Rob Mollah vs Slwhabuddin Ahmed 12 BLC (AD) 118.

 

Order V, rule 19B(2)

 

The learned Addi­tional District Judge was in error in holding since acknowledge receipt was not received by the Court consequently summons sent by registered post cannot be considered due service of summons by registered post as because proviso to sub-rule 2 of rule 19B of the Code of Civil Procedure provides that when the summons was sent by registered post with acknowledgment receipt due and that after 30 days even if acknowledge is lost or mislaid or for any other reason, was not received by the Court it would be considered that the summons was duly served by the registered post.

 

Abdur Rob Mollah vs Shahab-uddin 12 BLC (AD) 118.

 

Order VI, rule 1

 

It appears that the defendants later changed their stand stating, inter alia, that the suit property was settled by Khan Bahadur Asaddar Ali Khan Waqf Estate with Aslam, son of Md Hekim. This is, in fact, a third case made out at a very late end of the day. The case of alleged settlement is not available in the pleadings of the defendants or at any stage of hearing before the trial Court or lower appellate Court, the Courts of fact. The story thus produced now before the Appellate Division appears to be a vain bid to keep the ship afloat already wrecked in the tempest-tossed ocean. No credence can be given to such belated story.

 

Tara Mia vs Babru Mia 12 BLC (AD) 222.

 

Order VI, rule 1—Order VIII, rules 1, 3, 4 and 5

 

According to the law of pleadings, the defendant is bound to deal specifically each allegations of fact, the truth of which is not admitted. The written state­ment must not only deal with specifically, the defendant must also answer the point of substance. If his denial of fact is not specific but evasive, the said fact shall be taken to be admitted. In such event, the admission itself being proof, no other proof is necessary.

 

Zafela Begum vs Atikulla 16 BLC (AD) 46.

 

Order VI, rule 2

 

The suit land has been described as 'his property as Shilmondi on Dhaka-Sylhet road' is entirely vague, unspecified, imaginary but from the plaint it appears that 5 schedule of lands have given covering huge lands of several plots which have not been the lands of bainapatra as these lands have not been mentioned in the bainapatra. These lands having not been reflected in the bainapatra, as such, on this bainapatra no decree can be passed for the lands mentioned in schedule A to E of the plaint.

 

Roshanally Mohamed Harji vs AKM Zakir Hossain 16 BLC 85.

 

Order VI, rules 2 and 4

 

The generality and obscurity of the plea of fraud and collu­sion arising in this case left no scope but for the lower appellate Court to proceed to consi­der the case by effectively dismembering the words "fraud" and "collusion" from the gene­ral body of the plaint and find at the end of the day that, in all probability, and based on documents and evidence available, the acts alleged were, in fact, not tainted with any illegal character and purpose.

 

Rehan Ali (Md) & Ekendali vs Md Altab AH 11 BLC 28.

 

Order VI, rule 4

 

Summons upon the defendants were not at all served or there is nothing on record to show that the govern­ment appeared and contested that suit. Thus it is evident that the defendant was preven­ted by sufficient cause from appearing before the Court when the suit No. 329 of 1974 was called on for hearing. Moreover, it is worthy to state that when the elements of fraud and collusion is manifested in procuring the ex parte decree, that decree vitiates.

 

Bangladesh vs Serajul Haque 11 BLC 714.

 

Order VI, rule 4

 

The defendants-respondents obtained the ex parte decree in Title Suit No. 329 of 1974 suppressing sum­mons collusively and practising fraud upon the Court. Again, the defendants-respon­dents manufacturing some false and concoct­ed amalnama, dhakhilas and khatians tried to validate the evil design of grabbing huge quantum of the forest khas land practising fraud upon the Court and their evil design has been revealed in the appeal. The essence of law being to advance the cause of justice and not to frustrate it. If fraud is allowed to be perpetrated and perpetuated the sanctity attached to law will wither away with disas­trous consequences to the society.

 

Bangladesh vs Serajul Haque 11 BLC 714.

 

Order VI, rule 14

 

It is contended on behalf of the respondent Nos. 1 to 6 that the respondent No.3 and the General Manager (Finance) cum-Company Secretary are in the clear by virtue of being such of the several functionaries contemplated under Order XXIX, rule 1 as having the authority to sign and verify pleadings as they have indeed done. Given such submissions, it does appear to this Court that the argument as to the ostensible lack of the authority of the above two individuals to so act is without merit. Further, for a proper understanding of the provisions of Order XXIX, rule 1 this Court has deemed it pertinent to probe into those of Order VI, rule 14 as require the signing of pleadings by a party and its pleader, if any. In the event of such a party being a juristic entity as a company it is inevitable that the pleadings shall have to be signed by some person or the other on behalf of the company. Order XXIX, rule 1, it is found, is intended to meet that contingency and its provisions as referred to above aptly facilitate that process. This Court, in this regard, has taken note of the Indian Supreme Court's judgment in United Bank of India vs Naresh Kumar reported in AIR 1997 SC 3 as upholds that interpretation and reading of Order VI, rule 14 together with Order XXIX, rule 1 of the Code.

 

In this regard, it is found that the offices of Vice-Chairman/Chairman and General Manager (Finance)-cum-Company Secretary are sufficiently enabling to clothe such office­holders with the authority as enunciated above and consequently are declaratory of the absence of any infirmity attaching to these office-holders to sign and verify pleadings on behalf of the Company.

 

MM Ali Ispahani vs MM Ispahani Ltd 14 BLC.

 

Order VI, rule 17

 

The present case is considered a fit case for remand to the appellate Court below for consideration of the application for amendment to the plaint as well as for admission of the basic docu­ments of title filed in that Court by the plaintiff-petitioner by a firishti during the pendency of the appeal as additional evi­dence by giving opportunity to the defen­dant-opposite-party No.l to adduce fresh evidence, if any, and then dispose of the appeal afresh.

 

Kaniz Fatema alias Beauty vs Syed Ruhul Amin 11 BLC 123.

 

Order VI, rule 17

 

In the meantime, the plaintiffs filed an application for amendment for inclusion of compensation of 523 days from 26-9-2002 to 2-3-2004 for avoiding multiplicity of suits. In the instant case, the subject-matter of amendment is to include the compensation of 523 days from 26-9-2002 to 2-3-2004 of Taka 21,83,48,020 in place of Taka 7,21,65,014 which was claimed earlier and this amendment includes some addi­tional reliefs which will not change the nature and character of the suit, rather this sort of amendment will avoid the multiplicity of suits.

 

Talukder Chemical Ltd vs Titas Gas Transmission and Distribution Company Ltd 11 BLC 224.

 

Order VI, rule 17

 

Plaintiffs-petitioners by way of amendment sought relief in respect of a compromise decree which they allege to be forged and, also, insertion of some mate­rial facts in obtaining the compromise decree and some other incidental reliefs. The pro­posed amendment does not at all demons­trate that complexion of the suit has been totally changed and the amendment is not in consonance with the laws and principles controlling amendment of plaint. Petition for amendment of plaint was required to be accepted and allowed by learned Assistant Judge.

 

Afsaruddin Minn (Hazi) vs Sk Sultan All 11 BLC 534.

 

Order VI, rule 17

 

When the plaintiff No. 2 during the pendency of the suit in the trial Court by submitting a compromise petition relinquished his claim over 20 decimals of the suit land then the plaintiff Nos. 1 and 3 ought to have amended the schedule of the suit land but the plaintiffs did not do so. This observation made by the trial Court was absolutely correct but the lower appellate Court did not at all consider this vital and material point and did not mention anything in his judgment on this point.

 

Abdul Jabbar Bhuiyan vs Kulsum Banu 13 BLC 435.

 

Order VI, rule 17

 

While exercising any discretion under Order VI, rule 17 of the Code of Civil Procedure the Court is required to assign its reasons so that when the order is called in question, the higher Court may be in position to see that there has been application of mind by the Court concerned and that it is aware of the principles involved in the exer­cise of its discretion.

 

Akram Ali Pk. vs Yasin AH 17 BLC (AD) 135.

 

Order VI, rule 17

 

Amendment is always necessary to determine the real ques­tion of controversy between the parties, otherwise there is likelihood of croping-up of multifarious litigations.

 

Akram Ali Pk. (Md) vs Yasin AH 17 BLC (AD) 135.

 

Order VI, rule 17

 

It transpires that although the impugned order is non-speaking and slipshod but it will not pre­judice the defendant in any manner at this stage. It further appears that the proposed amendment will not change the nature and character of the suit. Since the Court is fully empowered to allow an amendment by either parties of their pleadings at any stage of the proceedings without changing the nature and character of the suit and no error of law was committed by the learned 2nd Addi­tional Assistant Judge, Dhaka by passing the impugned order dated 15-6-97, as such, no interference is called for.

 

Nasiruddin Nasu vs East West Property Development (Pvt) Ltd U BLC649.

 

Order VI, rule 17

 

It is well settled that the proposed amendment cannot be allowed to fill up the lacuna of the suit. It further transpires that the applications for proposed amendment of plaint and re-calling of PW 1 were filed after long lapse of seven years from the date of filing of the suit. Hence, both the applications were filed at the belated stage and the Court of appeal below rightly rejected both the applications. Belated prayer for amendment of a plaint tending to change the nature and character of the suit is not entertainable.

 

Abdul Khair Mollah vs Golafer-nessa 14 BLC 734.

 

Order VII, rule 3

 

The claimed land of the plaintiff has been very specifically and properly described in the schedule of the plaint inasmuch as the boundary of 18 decimals of land has also been described in the plaint. Apart from this I have gone through the schedule of the title deeds of purchase by the mother of the plaintiffs being of the year 1943 and 1950 and also in the schedule of both the deeds I find that the schedule as given in the plaint is exactly right that of the schedule given in the title deeds. Moreover, the local investigation report submitted by the learned Advocate Commis­sioner also speaks of truth of claim of the plaintiff and the learned Appellate Judge has very consciously taken into consideration this aspect of the case and thus arrived at his decision for decreeing the suit. Hence without filing partition suit the present suit is quite maintainable.

 

Bangladesh Raihvay Board vs Atar AH 14 BLC 556.

 

Order VII, rule 3

 

On a careful perusal of the plaint, it seems that the plaintiffs in order to get an order of injunction failed to give clear description of the land as required under Order VII, rule 3 of the Code of Civil Procedure. Since the suit land is not ascer-tainable and unspecified, the plaintiffs are not entitled to get an order of injunction on the land in question.

 

Abdur Rouf vs Abdul Odued Jaigirdnr 14 BLC 805.

 

Order VII, rule 3

 

Law as in Order VII, rule 3 of the Code of Civil Procedure requires the plaintiff to give clear description of the land in suit so that the land in suit is identifiable. In the instant case, it is seen that the particulars of the land as in Schedule 'Ga' to the plaint is vague and unspecified. In that state of the matter, it is clear that the plaintiffs have sought for declaration of title in respect of unspecified/vague and undivided land. If the land in suit is vague, unspecified and that relief sought is in respect of undivided portion of land of particular plot(s) in that case suit seeking mere declaration of title is not maintainable.

 

Ershad All Howlader vs Santi Rani Dhupi 12 BLC (AD) 36.

 

Order VII, rule 3

 

The plaintiff sought for declaration of title in part of a number of plots without specifying the area. The learned Advocate for the petitioner failed to show any evidence regarding plaintiff's pos­session in the suit land and hence the suit is barred under the proviso of section 42 of the Specific Relief Act and also under Order VII, rule 3 of the Code of Civil Procedure.

 

Abdul Malek Howlader vs Deputy Commissioner, Barisal and ors 11 BLC 325.

 

Order VII, rule 3

 

The plaintiffs have failed to demarcate and identify the lands of Suit No. 101 of 2004 and also failed to establish the contiguity of land with 'B' Sche­dule land. On top of that, the plaintiffs have failed to comply with the provisions of Order VII, rule 3 of the Code.

 

Ymmusco K Textiles Ltd vs Jamuna Knitting and Dyeing Ltd 12 BLC 202.

 

Order VII, rule 3

 

The learned Advo-cate-on-Record submitted that the appellate Court was in error in holding that the land of patta dated February 18,1922 corresponds to the land of Plot No..240. The contention is of no merit as it is seen from the materials on record, and particularly from the judgment of the appellate Court, which court on detailed discussions of the evidence arrived at finding that the parties to the suit admitted that the land of patta dated February 18, 1922 is the land of Plot No.240. It may be mentioned the land of patta dated February 18, 1922 wss described by boundaries and the explanation as to that was that at the relevant time the land was not divided into plots and this fact is not disputed by the parties to the suit.

 

Daliluddin Sheikh vs Alek Sheikh alias Abdul Malek Sheikh 14 BLC (AD) 32.

 

Order VII, rule 3

 

This is not an agri­cultural land in rural area where is a matter of established principle boundary prevails in case of dispute between area and boundary. We have no reason to hold that the same prin­ciple is equally applicable in respect of resi­dential plot in a Metropolitan area where land was measured and its price fixed per square yard and square foot.

 

Dr SKM Joynul Abedin vs Bangladesh 15 BLC 198.

 

Order VII, rule 4

 

The plaintiff could not prove by adducing evidence that fraud was practiced on him when the Nikhanama was registered. It is very much clear from the materials on record and the evidence of wit: nesses that the plaintiff and defendant eloped from their houses and stayed in various places against which the defendant's father filed a complaint with the local police station and the plaintiff's brother was detained and subsequently at the intervention of the local Union Parishad Chairman, the brother of the plaintiff was released and the local Chairman held arbitration to solve the dispute. The plaintiff's witnesses also admitted about the marriage. The Courts below found that the marriage took place between the parties which was consummated as both the parties lived together for some time as husband and wife. The fact that the petitioner was a minor at the time of marriage was not believed by the Courts below. Concurrent findings of the Courts below was not disturbed in the absence of error of law or procedure affecting merit of the case.

 

Abul Kalam Gazi (Md) vs Numnnahar (Shantu) 11 BLC 242.

 

Order VII, rule 10—

 

The application under Order VII, rule 10 of the Code appears to be a device to further delay the disposal of the suit and it is on this count alone that the petitioners ought to be precluded from raising a challenge to the jurisdiction of the Adalat. If the defaulting borrowers are allowed to circumvent the due process of law, then the intents and purposes of the legisla­ture i.e. the Parliament and the underlying public policy will be defeated and under­mined. Refusing the International Finance Corporation a right of action in Bangladesh under the Artha Rin Adalat Ain would be tantamount to denying that the Loan Agree­ments had conferred any right on it. The action for recovery of the loan in Money Suit No. 3 of 2000 before the Artha Rin Adalat No. 1, Dhaka should be allowed to proceed.

 

Mostaque Alum Chowdhury vs Court of ]oint District Judge and 2nd Artha Rin Adalat, Dhaka II BLC 245.

 

Order VII, rules 10 and 11

 

Considering the convenience of the respondent No. 2 in a situation like the instant one, the appellant is not competent to file the suit as filed in the Court of Sub-ordinate Judge, Dhaka impleading the respondent No. 1 whose Head Office is at Dhaka and carries on business through its branches in Rangpur and other places. The High Court Division has quite correctly passed the order for return of the plaint to the learned Advocate of the appellant for filing the same in the appropriate Court.

 

Habibur Rahman (Md) vs Uttara Bank Ltd 11 BLC (AD) 59.

 

Order VII, rule 11

 

Separate suit brought to challenge any order or decree passed by the Artha Rin Adalat being barred by law the plaint is liable to be rejected under Order VII, rule 11 of the CPC. Per Sheikh Abdul Awal, J (delivering the main judgment).

 

Arab Bangladesh Bank Ltd vs Md. Salauddin 16 BLC 277.

 

Order VII, rule 11—

 

Since the intention of law is not to put a person unconnected with loan transaction into the rigorous procedure of a special statute for protection of his property. He can, therefore, maintain his suit in an ordinary civil Court for relief. Per

 

M. Moazzam Husain J (dissenting). Arab Bangladesh Bank Ltd vs Md. Salauddin 16 BLC 277.

 

Order VII, rule 11—

 

Section 6 of the Artha Rin Adalat Ain, 1990 or for that matter Section 20 of Ain,2003 create a bar in pro­ceeding with a subsequent suit making a prayer for setting-aside an ex-parte decree even on the ground of fraud or even with a prayer for another declaration for the Power of Attorney and Memorandum of Deposit of Title Documents as forged, fabricated and false rather the only remedy available for the opposite-party No. 1 was to go for an application under Order IX Rule 13 of the Code of Civil Procedure or an appeal under Section 7 or Section 41 of the Artha Rin Adalat Ain, 1990 and 2003 respectively. Per Nozrul Islam Chowdhury J (Agreeing with Awal, J)

 

Arab Bangladesh Bank Ltd vs Md. Salauddin 16 BLC 293.

 

Order VII, rule 11—

 

Unless the said provisions are complied with, no cause of action for institution of a suit for specific per­formance or recession of the contract would lie. The learned Joint District Judge on consi­deration of the statement in the plaint and the written objection rightly held that this point may well be agitated and decided at the preemptory hearing of the suit.

 

Fnrah Naz vs Mahbuba Hasnat Klwn 16 BLC 484.

 

Order VII, rule 11

 

In this backdrop as well as the principles laid down in the cited decisions so far as it relates to the question whether the provision of the statute is mandatory or directory, it appears that the provision of section 46 of the Ain, 2003 so far it relates to the question of filing the suit by the bank or financial institution against the borrower within specified time is directory and not at all mandatory and therefore, in any view of the matter, the suit is not barred by limitation. Thus, there is no illegality or impropriety in the impugned order of the learned Judge of Artha Rin Adalat No. 1, Dhaka. Hence, the Rule fails.

 

Shahabuddin Khan vs Bangladesh 11 BLC 111.

 

Order VII, rule 11

 

In equity, good conscience and administration of justice as well as in interest of majesty of law and sanctity and finality of judicial verdicts of Superior Courts, provision engrafted in Order VII, rule 11 and section 151 of The Code is to be invoked and exercised to bury Title Suit No.165 of 1985 laid by plaintiff-opposite-party at the threshold.

 

Abdul Matin vs Bangladesh 13 BLC 30.

 

Order VII, rule 11

 

On consideration of the averments of the plaint, it appears that the amount claimed by the bank in the suit comes within the definition of "W in which the Artha Rin Adalat Ain is fully competent to adjudicate the matter and find out the actual dues of the bank, if any, and then pass necessary order. It appears that the Adalat committed no illegality in rejecting the appli­cation filed by the defendant-petitioner under Order VII, rule 10 of the Code and, as such, the impugned order does not call for any interference.

 

Shrimp and Fish Processing Plant Ltd vs National Bank Ltd 13 BLC 441.

 

Order VII, rule 11

 

It is the settled prin­ciple of law that disputed question cannot be decided at the time of considering an appli­cation under Order VII, rule 11 of the Code of Civil Procedure. It appears that none of the ingredients provided under Order VII, rule 11 of the Code of Civil Procedure are present in this case. In such circumstances of the case, plaint cannot be rejected.

 

Suraiya Begum and ors vs Maleka Khatun 12 BLC 54.

 

Order VII, rule 11

 

On going to mate­rials on record it transpires that the grounds urged for rejection of the plaint are absolutely the subject matter of evidence, which cannot be decided before taking evidence. On plain reading of the statements of the plaint it is evident that the same clearly discloses the cause of action, the relief claimed is not under valued, the plaint was not written upon paper insufficiently stamped and not barred by any other law. The question whether the plaint is liable to be rejected being barred by law must be apparent from the statement made in the plaint itself and not from the written statement or any other material other than that has been put in the plaint.

 

Afaal Hossain vs Radha Kanta Korati 15 BLC 196.

 

Order VII, rule 11—

 

The law is now well settled that a plaint may be rejected under Order VII, rule 11 of the Code of Civil Procedure if it is barred by any law or if the plaint discloses no cause of action for the suit, which must appear from the averments made in the plaint.

 

Kazi Nasirul Huq vs Mizanur Rahman Talukder 15 BLC 380.

 

Order VII, rule 11

 

21 deeds out of 77 deeds of transfer of schedule-'B' to the plaint and the plots relating to said 21 sale deeds were not referred to the Arbitration tribunal as per the Arbitration agreement dated 6-2-2006 and the award dated 4-5-2006 has got no manner of relation/connection with the said 21 deeds of transfer and, as such, the suit is very much maintainable with regard to those 21 deeds of transfer and plots. Thus the learned joint District Judge erred in law in rejecting the plaint of the suit as a whole.

 

Quaderabad Housing Estate Limited vs GK Moinuddin Chozvdhunj 15 BLC 808.

 

Order VII, rule 11

 

It is settled prin­ciples of law that the question of limitation in a suit is a mixed question of law and fact which can be decided only at the trial on taking evidence. Therefore, we find no merit in the submission of the learned Advocate for the petitioner.

 

Saifuddin Ahmed vs Dr Hosne Am Begum alias Colap 15 BLC 828.

 

Order VII, rule ll(d)—

 

There is no ambiguity in the language of section 5 of the Ordinance. It is to be read as it is. By impor­ting or adding the word 'rural' or 'urban' in the section it need not be interpreted otherwise. For the purpose of applicability of this section in the entire part of the country the legislature did neither used the word rural or urban nor used the word agricultural land or non-agricultural land in the section. So, we have found that by making the provi­sion of section 5 acquisition of the 'immov­able property' by benami transaction has been prohibited. The plaintiff had no legal title in the suit property to get declaration that the defendant is benamdar and he has acquired the property through benami tran­saction and, as such, the suit is barred under section 42 of the Specific Relief Act. There is no reason to interfere with the judgment and decree passed by the trial Court rejecting the plaint under Order VII, rule 11 (d) of the Code of Civil Procedure.

 

SN Knbir vs Fatema Begum 15 BLC 585.

 

Order VII, rule 17

 

The learned Addi­tional District Judge in his impugned order wrongly held that the plaintiff introduced some new facts by way of amendment. This view is absolutely erroneous elucidative of facts already asserted in the plaint. The settled law is that amendment of pleadings may be allowed at any stage of the pro­ceedings for the purpose of determining the real controversy between the parties. It is true that the learned Assistant Judge did not assign any reason in allowing the application for amendment. It appears that the defendant has not in any way been prejudiced by svich amendment. So, non-assigning the reason by itself is not a ground for revision unless the same has resulted in an error in the decision occasioning failure of justice.

 

Ershad Ali vs Md Ruhul Amin 11 BLC 684.

 

Order VIII, rule 1

 

Order VIII of the Code permits for filing additional written statement or with permission of the Court, better statement but it does not permit to file separate written statement.

 

Abu Md Shah Newaz vs Bangladesh 17 BLC 198.

 

Order VIII, rule' 1

 

The undenied posi­tion is that the donors were illiterate parda-nishine village women and the defendant No. 1 in succession certificate case acted as Tadbirkar of the said women i.e. donors. In the facts and circumstances of the case, the burden was on the defendant No. 1 to estab­lish that the donors executed the documents having had independent advice and also having had the knowledge about the transaction and the contents of the document. The defendant No. 1 miserably failed to establish the said fact.

 

Anwarul Azim vs Fatema Khatoon 12 BLC (AD) 96.

 

Order VIII, rules 1 and 2

 

The plain­tiff filed the suit on 3-11-1999 which has been contested by the defendant Nos. 1-12 but nowhere in their written statement there are any words referring Exhibits X(l), X(2) and X(3) nor the defendant produced those docu­ments and led any evidence before any of the courts below. Trial Court dismissed the suit and the Appellate Court below decreed the suit but instead of producing those papers before the court at any stage how the learned Advocate like JK Paul submits for making the Rule absolute at this stage on the basis of those papers is not understandable. Mr Paul having made no argument controverting the finding of the appellate Ccuit below that the plaintiff has been punished unheard the removal order has offended the principle of natural justice.

 

Narayan Dash vs Md Mostofa 13 BLC 63.

 

Order VIII, rule 5

 

Mandate of rule 5 of Order VIII is that unless allegation of fact contained in the plaint is not specifically denied, that allegation of fact shall be taken to be admitted.

 

Hari Rani Basak vs Bangladesh 13 BLC 1.

 

Order VIII, rule 10—Order IX, rule 13—Order XLIII, rule Kb)—

 

An order passed under Order VIII, rule 10 of the CPC is an appealable order under the provision of Order XLIII, rule l(b) of the CPC. In our CPC the provision of Rule l(b) of Order XLIII of the CPC has not been amended. According to our CPC, Rule l(b) of Order XLIII is .the specific provision for filing an appeal against an order passed under Order VIII, rule 10 of the CPC if the defendant fails to present the written statements on the date fixed by the Court. Before amendment of CPC in India the provision of Order XLIII, rule l(b) was the procedure for filing an appeal against an order passed under Order VIII, rule 10 of the CPC. But after amendment the provision of appeal has been deleted in India.

 

Ritpsha Fish Ltd vs Premier Bank Ltd 15 BLC 173.

 

Order VIII, rule 10—Order IX, rule 13A—Order XLIII, rule l(b)—

 

The new provision of rule 13A of Order IX has been brought in the CPC to avoid delay and expe­dite disposal in setting-aside the ex parts decree with cost without requiring the defen­dant to adduce evidence if an application for setting-aside decree is filed within thirty days from the date of decree. But in the present case, the defendant was very much before the Court. He took four adjournments for filing written statements but ultimately they failed to file the same and the Court passed the ex purte judgment which comes within the meaning of Order VIII, rule 10 of the Code of Civil Procedure and the same was appealable under the provision of Order XLIII, rule l(b) of the Code of Civil Procedure. So, the learned Joint District Judge was not justified in rejecting the petitioner's prayer for rejecting the miscellaneous case as being not entertainable.

 

Rupaly Fish Ltd vs Premier Bank Ltd 15 BLC 273.

 

Order IX, rule 2

 

The suit was not dis­missed for default under Order IX, rule 2 of the Code and legitimacy of getting notice after restoration is not available under Order XVII, rule 1(7) of the Code where restoration procedure was maintained with the know­ledge of the parties. There is no scope to issue any further notice under the new provision unless the Court is fully satisfied that the party was eager to contest, but could not get any information about the revival.

 

Momtajurn vs Arju Miah 17 BLC 787.

 

Order IX, rules 8 and 9

 

In the present case no step was taken by the plaintiff to set-aside the dismissal order of the previous suit and by suppressing the fact of the earlier suit, the plaintiff filed the present one. The records of the earlier case were subsequently pre­sented before the Courts below along with the relevant law but the Courts below with­out considering the provisions of law as laid down in Order IX, rule 9 of the Code of Civil Procedure came to an erroneous finding creating serious infirmity in their judgments which render the impugned decisions not sustainable in law.

 

Kamaluddin vs Md A Aziz Mondal 13 BLC 104.

 

Order IX, rule 13

 

None of the OPWs stated a single word on the service of sum­mons on defendant No. 1 but the records show that after the receipt of the return the trial Court fixed a date for ex parte disposal but before fixing the date, the trial Court has not looked into the service return. In the present case in a hot haste an ex parte decree was obtained which indicates that a fraud was committed upon the Court as well as upon the defendants and when a fraud is proved, then there is no question of limitation and time will run from the date when the fraud is detected and so, the question of limi­tation does not arise in the present case; even as, for argument's sake, it is conceded that the fraud was detected earlier, even then the Court is not debarred to interfere under section 151 of the Code.

 

Hyder AH Mia (Md) vs Razia Begum 12 BLC (AD) 75.

 

Order IX, rule 13

 

Since the Miscella­neous case was filed beyond the period of limitation and that as the petitioner in the Miscellaneous Case failed to establish his initial date of knowledge about the ex parte decree, the trial Court dismissed the Miscella­neous Case on the finding of limitation. The respondent No.l tried to establish the date of knowledge of the ex parte decree by the evidence of PW 2, who being cultivator of the respondent No.l trial Court quite legally considered him not disinterested witness, but High Court Division without reversing the finding of the trial Court on limitation set-aside the judgment of the trial Court. Service of summons on the respondent No. 1 was quite good service and the High Court Divi­sion was in serious error in holding that the ummons served in the manner was not a good service.

 

Sudhir Kumar Das vs Abdul Malek Mia 12 BLC (AD) 1.

 

Order IX, rule 13

 

Considering the above facts and circumstances of the case, the High Court Division has rightly found that the Miscellaneous Case was barred by both limitation as well as by principle of res-judicata and accordingly, made the Rule absolute.

 

Enayet Hossain vs Nur Islam Howla-der 12 BLC (AD) 179.

 

Order IX, rule 13

 

At the trial of the suit the appellants proceeded taking the stand that the claim of the plaintiff of the previous suit as regard the land in suit was based on non-genuine documents or, in other words, defendant-respondent in the previous suit obtained the ex parte decree on the basis of perjured evidence but setting-aside of the ex parte decree on the ground of obtaining the same on the basis of perjured evidence can never be accepted.

 

Government of Bangladesh, represented by the Secretary, Ministry of Forest vs Md Osimiiddinll BLC (AD) 10.

 

Order IX, rule 13

 

The initial knowledge about the ex parte decree remained unestab-lished and consequent thereupon the Miscel­laneous case filed on 6-11-1983 was certainly barred by limitation, since defendants were required to file the suit on 1-11-1983 as period of limitation was intervened by civil Court vacation re-opening on 1-11-1983.

 

Delwar Hossain Akter (Md) vs Md Nazrul Islam Khan andothers 11 BLC (AD) 265.

 

Order IX, rule 13

 

There is no record that the summons were duly served upon the defendants. In such circumstances the onus lies heavily upon the plaintiffs of the pre­vious suit to prove that summons were duly served upon the defendants which they utterly failed to prove and hence the ex parte decree is liable to be set-aside. Both the parties are in ejmali possession of the suit land. The Court of appeal rightly dismissed the prayer for declaration of title in the suit land. The plaintiffs-petitioners are at liberty to seek appropriate relief in a proper suit.

 

Amiruddin Mondal vs Ashraf Ali 11 BLC 134.

 

Order IX, rule 13

 

A separate suit is not barred provided his remedies under the Artha Rin Adalat Ain stood barred at the time of filing of the suit for no fault of his own. The door of the Code of Civil Procedure is still open to the petitioner if he can prove that no summons was served upon him and he had no knowledge of the suit. The learned Advo­cate for the opposite-party No. 1 also admits that petitioner can seek his relief under Order IX, rule 13 of the Code if he can overcome the bar of limitation.

 

Ibn Sina Trust vs Arab Bangladesh Bank Ltd 11 BLC 154.

 

Order IX, rule 13

 

Both the Courts below took into account pleadings of parties, evidences adduced from both sides, specially evidence of OPW 5 process-server and vari­ous orders recorded that the Suit came to positive decision that defendants-petitioners were well aware of original Suit and they were substituted on the death of their predecessor and summons had been duly served upon them. Court of appeal, also, found that Miscellaneous Case was rightly dismissed on a detailed discussion and it found no justification nor any ground to interfere with decision rendered by learned Joint District Judge which does not at all warrant interference.

 

Syeda Heidi Begum vs Shanti Mary Cmez 12 BLC 661.

 

Order IX, rule 13

 

The summons was not duly served on them and that they were not aware of the institution of the suit but they did not claim in their petition that their addresses given in the cause-title of the suit was wrong but in spite of this position the learned Sub-ordinate Judge as well as the learned Single Judge of the High Court Division committed an error of law resulting in an error in the decision occasioning failure of justice in making out a third case.

 

Kulsuma Khatun vs Rahman Sobhan 14 BLC (AD)27.

 

Order IX, rule 13

 

The judgments of the Appellate Division which affirmed the ex parte decree dated 23-6-1999 passed by lear­ned Assistant Judge, Nawab ganj in Title Suit No. 127 of 1997, it transpires that the impugned judgment dated 16-4-2006 passed by the learned District Judge is manifestly perverse. Because, the finding and decision of the Appellate Division is binding on all the courts below including the High Court Division under Article 111 of the Constitution of Bangladesh. The impugned judgment and order passed by the learned District Judge, Dhaka is absolutely wrong, illegal and mani­festly perverse which is liable to be set-aside.

 

Nurjahan Begum vs AFM Abdullah 13 BLC 535.

 

Order IX, rule 13

 

Due service of sum­mons is an essential condition which must be satisfied before Court can proceed to award an ex parte order/decree. In knocking down an ex parte order/decree on the ground of fraudulent suppression on summons, knowledge is not at all relevant and an ex parte order/decree is liable to be overruled even if a party against him ex parte order/decree had been recorded had knowledge of a Civil proceeding against him.

 

Momin Miah vs Md Shafiitllah Patioari 13 BLC 86.

 

Order IX, rule 13

 

It is contended on behalf of the petitioners that the trial Court itself was satisfied that the summons was not duly served, rather, the summons was received by one Shahidullah, an alleged attorney of the petitioners, the trial Court committed illegality in finding that receipt of summons by the alleged attorney is sufficient to treat the service as proper since the petitioners specifically stated in their appli­cation that any person named Shahidullah or anybody else was not appointed by them to act on their behalf, particularly to receive any summons, and it was the duty of the plain­tiffs to prove that the summons was duly served upon the defendants.

 

Moslehuddin vs Omar Ali 14 BLC 217.

 

Order IX, rule 13

 

The appellant ought to have been given an opportunity to prove his case of wrong advice given by the learned Advocate, which fact the appellant asserted on oath in his pleading, and such act, on the part of the District Judge in not providing an opportunity to a litigant to prove his case, is against natural justice and thus the rejection of the condonation application filed under Order IX, rule 13 of the Code of Civil Proce­dure for restoration is illegal and cannot be maintained.

 

Meer Niaz Mohammad vs Bangla­desh Shilpa Rin Sangstha 14 BLC 407.

 

Order X, rule 2

 

The petitioner is a necessary party in the suit because the com­pany enjoyed the loan when she was its Chairman, as such, the suit should be disposed of in her presence. However, her liability is not dependent on her status as the Chairman or share-holder of the company unless it is found on evidence that she executed the charge documents in favour of the bank.

 

Bakul Akter vs Bangladesh 16 BLC (AD) 4.

 

Order XI, rule 21

 

Defendant No. l(a) to l(e) did not contest the suit as heir of defendant No. 1 but heir of Shamsul Kabir Hamayun Reza of Bora Mogbazar who is not a party to the suit and role of DIT having been very unsatisfactory and he adduced a witness who himself deposed that he is not authorised by DIT to depose, cases were these defendants left out of consideration in deciding all the appeals in which they are defendants excepting the case in which defendant No. l(a) to l(e) are plaintiffs. Per Sharif Uddin Chaklader, J (delevering the main judgment)

 

MA Hashem vs Shamsul Kabir Humayun Reza 16 BLC 830.

 

Order XVI, rules 13 and 17

 

Purpose of serving notice is nothing, but to give infor­mation to the parties about the proceeding, so that they can appear if they like. The purpose appears to have been served by giving information through their engaged lawyer. But the learned Judge of the trial Court even after admitting about getting information of revival misdirected himself by saying that notice was necessary to be served in the suit after its revival.

 

Momtaj Begum vs Arju Miah 17 BLC 787.

 

Order XVII, rule 1(7)

 

The suit was not dismissed for default under Order IX, rule 2 of the Code and legitimacy of getting notice after restoration is not available under Order XVII, rule 1(7) of the Code where resto­ration procedure was maintained with the knowledge of the parties. There is no scope to issue any further notice under the new provision unless the Court is fully satisfied that the party was eager to contest, but could not get any information about the revival.

 

Momtaj Begum vs Arju Miah 17 BLC 787.

Order XVII, rule 1(7)

 

No notice was required to proceed with the suit after revival order passed under Order XVII Rule 1 (7) of the Code.

 

Momtaj Begum vs Arju Miah 17 BLC 787.

 

Order XVII, rule 2

 

Summons upon the defendants were not at all served or there is nothing on record to show that the govern­ment appeared and contested that suit. Thus it is evident that the defendant was pre­vented by sufficient cause from appearing before the Court when the suit No. 329 of 1974 was called on for hearing. Moreover, it is worthy to state that when the elements of fraud and collusion is manifested in pro­curing the ex parte decree, that decree vitiates.

 

Bangladesh vs Serajul Haque 11 BLC 714.

 

Order XVIII, rules 2 and 3

 

Consi­dering the provisions of Order XVIII, rules 2 and 3 of the Code of Civil Procedure and sections 101,102,103 and 138 of the Evidence Act it manifests that mere stating or alleging facts in the pleading are not enough to establish a legal right, be it preemption under the Mohammedan Law on any other suits proceeding under any other Law. There was no reference of talab-e-mowasibat when he allegedly performed the formalities of talab-e-Ishaad. If there was no reference of talab-e-mowasibat at the time of talab-e-Ishaad then it would be held that the legal formalities which are condition precedent to exercise the right of preemption under the Mohammedan Law were not observed. Thus, the plaintiffs have failed to observe the legal formalities of talab-e-Ishaad and talabe-e-mowasibat being the condition precedent to pray for pre­emption under the Mohammedan Law.

 

MonirMiah vs Slwfiqur Rahman 13 BLC 606.

 

Order XVIII, rule 17

 

It is well settled that under Order XVIII, rule 17 CPC the Court has ample power to re-call at any stage a witness who has earlier been examined, cross-examined and discharged. This discretionary power can be exercised at the instance of a party or even suo motu. But such discretion cannot be extended beyond the law of Evidence as described under section 138 of the Evidence Act to allow a party to the suit who did not cross examine a witness in time and without any excuse to avail his right to cross-examine the witnesses, the whole purpose or object for such discretion is to advance justice not to cause injustice.

 

Abdul Aziz Howlader vs Seratan Bibi 15 BLC 461.

 

Order XX, rule 4

 

The accepted and settled principle is that a Court, either appellate or revisional, is required to dispose of the case upon assigning reasoning because of which it is persuaded either to affirm the judgment of the Courts below or to set-aside the judgment of the Courts below. The learned Judge in disposing of the instant case has not given any reason from which it can be said that the result arrived at by the learned Judge is on the basis of the reasoning that persuaded him to set-aside the judgment of the Courts below. The Appellate Division expects that in future the learned Judge would dispose of the case in the accepted manner i.e. upon discussion of the materials on record, and thereupon assigning reason in support of his judgment. It may be men­tioned in the instant case in spite of the quality of the judgment the Appellate Divi­sion did not feel to interfere with the same since on perusal of the materials on record the Appellate Division was convinced that although the judgment did not conform to the accepted form or kind, the judgment ought to have but the result arrived at calls for no interference.

 

Ashrafee Begum vs Md Siddiqur Rahman Patwari 13 BLC (AD) 111.

 

Order XX, rule 6

 

The question as to passing of the decree without complying with Order XX, rule 6 of the Code could have been good grounds for agitating before the Court of appeal. But without contesting the suit and without applying section 19 of the Ain for setting-aside the ex parte decree or without applying for deduction of the value from the claim the suit as provided in section 12(6) of the Ain the petitioner cannot now come under the writ jurisdiction and claim that the proceeding and the judgment and decree delivered by the Artha Rin Adalat is a nullity and/or void and without any basis.

 

KM Hamdor Rahman vs National Housing Finance & Investments Ltd 11 BLC 578.

 

Order XXI, rules 3, 5, 6, 7, 8 & 9—

 

Collective reading of the sections 5(4), 5(5) and 6(ka) of the Ain of 1990 shows that Artha Rin Adalat shall follow and apply the Code of Civil Procedure as a Civil Court in exercising its jurisdiction, powers and functions while adjudicating any dispute between the parties before it including execution of its decree insofar as, it is not inconsistent with the provisions of section 6(Ka) or any other provisions of the Artha Rin Adalat Ain, 1990. Section 6(Ka) has excluded the operation of Rules 3,5,6,7,8 and 9 in matters of execution of any decree. In other words, Artha Rin Adalat shall execute its decree applying the provisions of sections 55 and 56 of the CPC read with Order XXI and the rules made thereunder except the rules 3,5, 6, 7, 8 and 9. Application of section 56 of the Code has not been excluded by section 6(Ka).

 

Hazera Begum vs Artha Rin Adalat 12 BLC (AD) 153.

 

Order XXI, rule ll(2)(g)

 

By filing the application dated 25-9-2005 the petitioner has in effect sought a piecemeal execution of the decree/firstly, for the principal amount and subsequently for the amount of interest that is contrary to the express provisions of Order XXI, rule ll(2)(g). The decree-holder-petition­er had a right to seek a comprehensive and complete relief the first time around, but having not done so, as is evident in the facts and circumstances of this case, shall not, therefore, have any avenue open to it for placing claims periodically at subsequent dates. Having thus failed to so fully exercise its right by execution of the entire Decree at one go the decree-holder-petitioner, and as is evident in the execution petition of 10-3-2005, having asked this Court to enforce the decree for the sum only of Taka 19,70,000, a sum lesser than the gross claimed amount of Taka 31,03,562.50 inclusive of interest, must now be taken to have accordingly waived the right to claim the balance amount of Taka 11,33,562.50. Requiring this Court to now allow satisfaction of the claim to the balance interest amount in the manner as sought in the application dated 25-9-2005 is tanta­mount to effectively asking this Court to innovate on the execution application and case which this Court is now reluctant to undertake in the facts and circumstances.

 

Fairdeal Marine Services vs 'MV Peleas K' 23 BLC 447.

 

Order XXI, rules 13 and 17

 

Accor­ding to the provision of order XXI, rule 13 of the Code, the application may be made before the executing court for attachment and sale of any immoveable property belonging to the judgment-debtor for the purpose of realisation of money. So, any immovable property which belonged to the judgment-debtor may be attached and sold in execution of a decree for realisation of money. It is not correct that the properties not included in the schedule of the plaint cannot be included at the execution stage for the purpose of attach­ment or sale. It appears from the provision of Order XXI, rule 17 of the, Code, there is no restriction within four corners of this Rule about allowing amendment of an application of execution after registration thereof. The Adalat (execution Court) had lawful autho­rity to amend the application. So, the impug­ned order dated 12-8-2000 may be lawful if it is found that the flats belonged to the judgment-debtor.

 

Rashida Mahabub vs IFIC Bank Ltd 13 BLC 78.

 

Order XXI, rules 26 & 29

 

The execu­ting Court in the facts and circumstances of the case rightly arrived at a finding that peti­tioners being a third party to the decree have no locus standi to file an application under Order XXI, rule 26 and 29 of the Code of Civil Procedure for staying all further proceedings of Execution Case till disposal of the Title Suit No.370 of 2007. We endorse the reasoning given by the executing Court in rejecting the application under Order XXI, rule 26 and 29 of the Code of Civil Procedure for stay.

 

Abul Kkair vs Advocate Mokhlesur Rahman Choiu-dhury 15 BLC 582

 

Order XXI, rule 27

 

The present case is considered a fit case for remand to the appellate Court below for consideration of the application for amendment to the plaint as well as for admission of the basic docu­ments of title filed in that Court by the plain­tiff-petitioner by a firishti during the pen­dency of the appeal as additional evidence by giving opportunity to the defendant-oppo­site-party No.l to adduce fresh evidence, if any, and then dispose of the appeal afresh.

 

Kaniz Fatema vs Syed Ruhul Amin 11 BLC 123

 

Order XXI, rule 29

 

A separate suit is not barred provided his remedies under the Artha Rin Adalat Ain stood barred at the time of filing of the suit for no fault of his own. The door of the Code of Civil Procedure is still open to the petitioner if he can prove that no summons was served upon him and he had no knowledge of the suit. The learned Advocate for the opposite-party No. 1 also admits that petitioner can seek his relief under Order IX, rule 13 of the Code if he can overcome the bar of limitation.

 

Ibn Sina Trust vs Arab Bangladesh Bank Ltd 11 BLC 154.

 

Order XXI, rule 29

 

The judgment debtor instituted title suit No. 14 of 2004 against the decree holder for perpetual injunction for restraining him from taking possession of the suit land. In the execution proceeding, he made an application under Order XXI, rule 29 of the Code of Civil Proce­dure for stay of further proceedings of the execution case. The executing Court how­ever, allowed the application and granted stay of further proceedings of the execution case till disposal of title suit No.14 of 2004. Against the order of stay, the decree holder made a revision application before the dis­trict Judge at Brahmanbaria. Additional Dis­trict Judge, Second Court hearing the revision was pleased to allow the revision and set-aside the order dated 4-7-2005 and directed executing Court to proceed with the execu­tion expeditiously. In the aforesaid circum­stances, the application made under order XXI, Rule 29 must be held to be misconceived and tortuous on the part of the judgment debtor to stall the execution proceeding.

 

AKM Shahidul Haque vs Abu Taker 12 BLC 135.

 

Order XXI, rule 29

 

In order to invoke Order XXI, rule 29 of the Code of Civil Proce­dure, the existence of a decree is required and admittedly, the Arbitral Award sought to be enforced is neither a decree nor the same has been deemed to be a decree by any law. Therefore, in the facts of the case and the principles enunciated in the cited decisions vis-a-vis the provision of Order XXI, rule 29 of the Code of Civil Procedure we have no hesitation to hold that the learned District Judge, Dhaka committed serious error of law in passing the impugned order without properly applying his judicial mind into the facts and circumstances of the case and law bearing on the Subject and the same has resulted in an error in the impugned decision occasioning failure of justice.

 

Smith Co-Generation (BD) Private Limited vs Bangladesh PDB 15 BLC 704.

 

Order XXI, rule 32(1)

 

Revisional Court below set-aside the order of the Executing Court holding that possession cannot be restored in execution of a decree of perpetual injunction under Order XXI, rule 32(1) of the Code by putting the judgment-debtor into civil jail and by attachment of his land or by both the ways, etc. Revisional Court however found that the judgment-debtor dispossessed the decree-holder from the land defying the ex parte decree, but there is no scope to execute the decree without filing a fresh suit since dispossession gave rise to fresh cause of action. On plain reading of sub-rule (1) of rule 32 of Order XXI of the Code it appears that sub-rule (1) clearly empowered the executing Court to enforce a decree of injunction.

 

Mahbub-ul-Alam (Minor) vs Md Alimiiddin Karikor 15 BLC 76.

 

Order XXI, rule 37

 

Without resorting to those protections provided by the Act VIII of 2003 the petitioner has challenged the vires of section 34 of the Ain of 2003 with reference to Order XXI, rule 37 of the Code of Civil Procedure alleging that the said provision is ultra vires the Article 31 of the Constitution on the plea of not issuing show cause notice before issuance of warrant of arrest, which is not entertainable since the entire process of initiation of the suit, passing of the ex parte judgment and decree, filing of the execution case and process for auction sale of the mort­gaged property are within the knowledge of the petitioner. Rather, with the purpose to cause delay for realisation of the decretal amount the present application has been filed by the petitioner praying for notice as provided in the Code but to fulfil such desire even Order XXI, rule 37 of the Code does not also provide for issuance of any notice.

 

ABM Shirajum Monir vs Sub-ordinate Judge 14 BLC 716.

 

Order XXI, rule 37

 

The provision of Order XXI, rule 37 of the Code of Civil Proce­dure speaks about issuance of show cause notice upon the judgment-debtor before issuing warrant of arrest as to why he should not be committed to civil prison without reference to any period of sentence for recovery of money pending execution pro­ceeding, as a mode of punishment, whereas section 34 of the Ain, 2003 provides for civil detention " to be passed against the judgment-debtor as a mode for realisation of the decretal amount where the legislature has used the following language ". as such, it cannot be said that Order XXI, rule 37 of the Code is identical with the provision laid down in section 34 of the Ain of 2003.

 

ABM Shirajum Monir vs Sub-ordinate Judge 14 BLC 716.

 

Order XXI, rule 58

 

The sole question to be investigated is one of possession. And next, if possession is found of the respon­dents whether they possessed independently or through judgment debtor. Learned Judge without any investigation passed the order holding that the applicant's respondents ascertained in the application that their property was wrongly included in the auction notice.

 

Rupali Bank Ltd vs Sheuli Akter Mom 17 BLC 476.

 

Order XXI, Rule 58

 

An inter-locutory order is neither an appealable nor a revisable order; therefore, challenging a rejection order passed by the Artha Rin Adalat on an application under the said provisions is erttertainable under the writ jurisdiction.

 

MM Badshah Shirazi vs Judge, Artlia Rin Adalat 17 BLC 226.

 

Order XXI, rule 58

 

The petitioner not being a third party to the suit and he having contested the suit by filing written statement, the application under Order XXI, rule 58 of the Code is incompetent. There was no ground to interfere with the impugned order and left the matter open for deciding the same by the executing Court.

 

Uttara Bank Ltd w Sub-ordinate Judge 11 BLC (AD) 229.

 

Order XXI, rule 58

 

We have carefully examined the provisions of section 6(5) and other related sections of the Ain, 2003 together with the application under Order XXI, rule 58 of the Code of Civil Procedure and it appears that the Courts below under the legal obligation rightly treated the claim of the petitioner as 3rd party's claim.

 

Harunur Rashid Bhuiyan vs Pubali Bank Ltd 15 BLC 458.

 

Order XXI, rules 58 and 62

 

Rule 58 of Order XXI of the Code of Civil Procedure requires an executing Court to investigate the claim or objection of an objector as if he was a party to suit. Such investigation is dispen­sed with only when the court considers the claim or objection was designedly or unnecessarily delayed. The court did not find the claim or objection of AB Bank was delayed. In the facts and circumstances of the case and in the interest of justice, the Fourth Artha Rin Adalat which now holds the property must dispose of both execution cases under section 27 of the Ain. In the result, the appeal is disposed of without however any order as to cost. Third Artha Rin Adalat is directed to send the decree dated 29-7-99 passed by it in Title Suit No. 125 of 1992 to the Fourth Artha Rin Adalat for execution and Fourth Artha Rin Adalat is directed to execute both the decrees in accordance with law.

 

Arab Bangladesh Bank Ltd vs Janata Bank and ors 11 BLC 186.

 

Order XXI, rule 90

 

The Court can sno motu take notice of gross irregularities in auction sale and from the facts as stated in the application under Order XXI, rule 90 of the Code of Civil Procedure. It is true that at the instance of a 3rd party auction sale can be set-aside but the Court has always the power to set-aside such auction sale on the ground of fraud and irregularities.

 

Kamal Hossain vs Sub-ordinate Judge and Artha Rin Adalat 15 BLC (AD) 177.

 

Order XXI, rule 90

 

It is seen from the materials on record that the defendants failed to establish their case of auction purchase upon due compliance of law and, in this regard, it has been held by the lower appellate Court that the auction by which defendants are said to have purchased the land depriving co-sharers was product of fraud. It is seen from the judgment of the lower appellate Court that the minors were not represented in the money suit, in execu­tion decree whereof the land of the plaintiffs were put to auction, although plaintiffs' mother was alive at the relevant time but she was not made party in the money suit to represent the minors i.e. the plaintiffs.

 

Dalil-uddin Sheikh vs Alek Sheikh U BLC (AD) 32.

 

Order XXI, rule 90

 

The Court can suo motu take notice of gross irregularities in auction sale and from the facts as stated in the application under Order XXI, rule 90 of the Code of Civil Procedure. It is true that at the instance of a 3rd party auction sale can be set-aside but the Court has always the power to set-aside such auction sale on the ground of fraud and irregularities.

 

Kamal Hossain vs Sub-ordinate Judge and Artha Rin Adalat 15 BLC (AD) 177.

 

Order XXI, rules 90 and 91

 

The peti­tioner did not file any application under Order XXI, rules 90/91 of the Code for setting-aside sale on the ground of fraud but filed an application under section 151 of the Code. Moreover, it has already been settled in many cases that for maintaining an application under the Code, security to the extent of 25% of decretal amount is necessary in view of the provision of section 32(2) of the Ain.

 

Rashida Mahabub vs IFIC Bank Ltd 13 BLC 78.

 

Order XXI, rules 94 and 95

 

The High Court Division disbelieved the case of the plaintiff on the ground that the plaintiff could not produce the writ of delivery of posses­sion and only the certified copy of sale certificate was produced without calling for the original of the same. The High Court Division took correct view that the plaintiff could not prove that the ex-landlord auction purchased the suit land and made the same khas and thereafter, the same vested in the Government as excess non-retainable khas land of the ex-landlord.

 

Bangladesh vs Md AH Khondker 12 BLC (AD) 160.

 

Order XXI, rules 94 and 95

 

Exhibits 3(b), 3 and 3(a) are documents revealing that property to the extent of 10 annas 5 gondas 1 Kara 1 krantee share owned by Gokul Chandra Basak and Madan Mohan Basak had been put to auction and plaintiff-peti­tioner Hari Rani Basak purchased property of the above shares i.e. 2/3 of share of the whole property and sale was confirmed. Sale Certi­ficate had been issued and on the strength of Writ of Delivery of Possession, auction purchaser plaintiff PW 1 Hari Rani Basak had entered into possession through process of law. A careful exploration of Sale Certificate and Writ of Delivery of possession, Exhibit 3 and 3A, demonstrates that Rules and Pro­cedures engrafted in Rules 94 and 95 of Order XXI of The Code had been complied with. Title of suit property on the strength of auction purchase had passed to plaintiff-petitioner Hari Rani Basak.

 

Hari Rani Basak vs Bangladesh 13 BLC 1.

 

Order XXI,   rules  94  and  95

 

The discussion and finding that Exhibits 2-2ga were written on previously used stamps and signed and sealed and fraudulently manu­factured after washing and removing the previous writings with help of chemical sub­stances by giving hit of fire and spraying dirt superficially, that though the certified copies were, issued 40 years before seal used appeared clear and fresh of recent origin with clear, distinct and visible marks of subse­quent overwriting, manipulation and inter­polation on 2ka, 2kha and 2ga in execution case of 1954, figure 4 and figure 3 of the date 31-3-55 after rubbing marks of previous seal, the term 'Munsif misspelt as 'Monsif and 'Bakagonj' written in the seal in Exhibits 2, 2ka leading the trial Court to hold that only to grab the property left by the member of Hindu community plaintiffs and the defen­dant jointly brought the suit and that had the property been acquired by auction purchase in 1961 or before they would naturally take active step for mutation and separation of jama to obtain mutated khatian and rent receipt but no such step was taken, are, in my view, cogent and consistent with materials and evidence and the above findings of fact arrived at by the trial Court on consideration of the evidence on record and the learned Sub-ordinate Judge as last court of fact, with­out adverting to the fact and circumstances and setting-aside the same on consideration of evidence, acted illegally with material irregularity in decreeing the suit occasioning failure of justice and, as such, impugned judgment and decree passed by the learned Sub-ordinate Judge is not sustainable and liable to be set-aside.

 

Anowara Begum vs A Majid 14 BLC 658.

 

Order XXI, rules 97 and 98In the instant case, the learned Judge ought to have taken necessary steps to put the decree-holder in physical possession of the concer­ned property of the judgment-debtor as prayed for. Since specific provision is not available in the Act enabling the Artha Rin Court to put the decree-holder into posses­sion, the Court may exercise its such juris­diction as provided in rules 97 and 98 under Order XXI of the Code read with section 26 of the Act, and give necessary directions to execute its order.

 

IFIC Bank Ltd vs Mariner Fashions Wear Pvt Ltd 12 BLC 723.

 

Order XXI, rule 99

 

The provision of Order XXI, rule 99 is of no assistance to the plaintiff as well as the present suit is not pending against both the parties to the previous suit so as to attract the said provi­sion but the instant application for temporary injunction is simply designed to obstruct the execution of decree obtained 30 years back by the defendant in the instant suit for decla­ration of title and recovery of possession at the instance of the plaintiff.

 

Joinmnessa vs Abdul Matalib 15 BLC (AD) 124.

635

Code of Civil Procedure, 1908-Part II

Citation: 17 BLC (AD) 154, 17 BLC 481, 15 BLC 744, 11 BLC 334, 13 BLC 807, 15 BLC 144, 11 BLC 47, 12 BLC 249, 12 BLC 383, 12 BLC 414, 13 BLC 603, 14 BLC (AD) 47, 15 BLC (AD) 24, 13 BLC 777, 14 BLC 416, 16 BLC (AD) 107, 13 BLC 457, 11 BLC 494, 14 BLC (AD) 185, 15 B

Case Year: 1908

Subject: Code of Civil Procedure

Delivery Date: 2018-06-11

Code of Civil Procedure, 1908

[V of 1908]

 

Order XXI, Rule 100

 

Resolution of disputed question of fact is permissible under sub-rule (2) of Rule 100 which provi­des that the Court shall fix a date for investi­gating the matter and shall summon the party against whom the application was made to appear and answer the same.

 

Md. Salim Hossain vs Artha RinAdalal Munshigonj 17 BLC (AD) 154.

 

Order XXI, rules 100 and 101

 

No execution can proceed against a person who is not a judgment-debtor or who does not claim through any judgment-debtor. No execution can validly proceed against any property other than immovable property and not covered by the decree. Rule 100 has given a right to a person, who is not a judgment-debtor yet is dispossess of immovable pro­perty in execution of a decree to file an appli­cation complaining of such dispossession. Rule 101 requires of an Executing Court to investigate in order to be satisfied as to whether the applicant was in possession of the property as complained of and secondly, if such claimant was in possession of his own account or on account of some person who was not the judgment-debtor. When the Court finds the answer in the affirmative, it becomes the duty of the Court to put the claimant back into possession at once. The proceedings under the rules are no doubt summary in nature and the wrong done to a party by the Executing Court at the instance of the decree-holder without any fault of such party, must be remedied by the Executing Court without any further delay.

 

SanmtUah vs Government of Bangladesh 17 BLC 481.

 

Order XXI, rules 100 and 101

 

The Adalat by exercising its discretion under order XXI, rule 100 and 101 of the Code enter­tained the application and after delivery of possession of the schedule property to the petitioner-auction-purchaser, the Adalat has not become functus-officio.

 

Sanaullah vs Government of Bangladesh 17 BLC 481.

 

Order XXII, rule 4

 

It is true in passing the impugned order the Court below did not, in so many words discuss the reasons which led him to pass the impugned order but from the materials on record, it appears that the materials on record justify the order. It is by now well settled that mere omission to assign reasons in the impugned order is not fatal if in law the order is sustainable. So, it is mere irregularity and not an illegality and the impugned order cannot be knocked down on that Count.

 

Gazi Mohinddin vs Government of Bangladesh 15 BLC 744.

 

Order XXII, rule 9

 

Abatement is auto­matic after the expiry of 90 days from the date of death of a party as provided in Article 177 of the Limitation Act and unless the abatement be set-aside on a proper applica­tion presented within 60 days from the date of abatement as provided under Article 171 of the Limitation Act or a period further extended by virtue of section 5 of the Limita­tion Act upon condoning the delay, the suit or appeal becomes dead. So, for setting-aside the abatement order the Court should investigate whether the plaintiff is prevented from making the application for substitution within the statutory period and should direct its attention to the question whether the plaintiff is entitled to the benefit of section 5 of the Limitation Act.

 

Gopal Chandra Shil vs Government of Bangladesh 11 BLC 334.

 

Order XXIII, rule l(l)(2)(a)(b)(3) & (4)

 

In Civil Revision Petition plaintiff-peti­tioners on bestowing a petition under Order XXIII, rule 1 of the Code sought withdrawal of suit with permission to sue afresh on setting-aside Judgments and Decrees of Courts below.

 

True it is that proceeding in hand took long nineteen (19) years and there had been wastage of time and money but ends of justice demands that all controversies involved in the suit are required to be laid at rest on removing "formal defects." In the dis­course made above, the petition laid under Order XXIII, rule 1 of the Code for withdrawing of suit with permission to sue afresh is liable to be allowed. Corollary thereof is that plaintiffs petition for with-drawing the suit with permission to sue afresh allowed. Plaintiffs-petitioners are granted permission to withdraw the suit with liberty to institute a fresh suit in respect of subject matter of the suit. Judgments recorded by Courts below are set-aside. Plaintiffs-petitioners shall pay cost of Taka twelve thousand (Tk. 12,000) to defendant-opposite parties.

 

Noor Jahan vs Abdur Rahman 13 BLC 807.

 

 

Order XXIII, rule 1(3)

 

The subject matter of the present suits and the earlier suits are not same and therefore Order XXIII, rule 1(3) has no manner of application in the case.

 

Mohiuddin Khan vs Shihamnl Haque 15 BLC (AD) 129.

 

Order XXVI, rule 9

 

Appeal is now pending for hearing. At this stage the petitioner filed an application seeking local investigation, for ascertaining whether there is any structure on the suit land. Proposed terms of local investigation is the subject matter of evidence. The Court of appeal below after assessing evidence on record is empowered to determine such matter in issue. Therefore, by rejecting the application it committed no error of law:

 

Eunus Howlader vs Hari Sadhan Samadder 15 BLC 144.

 

Order XXVI, rule 9

 

As there is no mention of plot and khatian in the sale deeds which as were executed and registered long before the SA operation came into being, the matter canot be resolved through oral evi­dence but it can only be ascertained through relayment of the land of the sale deeds stated in the plaint by local investigation.

 

Gopesh Chandra Ghosh vs Radha Krishna 11 BLC 47.

 

Order XXVI, rule 9

 

 Since the defendant has denied to have constructed any road upon the land of plot No. 3003 and since they specifically stated that they have constructed a road upon the land of plot No. 3004, it is not possible to pass any effective judgment unless the fact is ascertained by an Advocate Commissioner as to whether the road has been constructed upon the land of plot No. 3003 or 3004. There is no laches on the part of the plaintiff,to take necessary steps. To meet the ends of justice, a fresh local investigation is necessary.

 

Sadeque vs Abdu] Khaleque 12 BLC 249.

 

Order XXVI, rule 9

 

Since the defend­ant has denied to have constructed any road upon the land of plot No. 3003 and since they specifically stated that they have constructed a road upon the land of plot No. 3004, it is not possible to pass any effective judgment unless the fact is ascertained by an Advocate Commissioner as to whether the road has been constructed on the land of plot No. 3003 or 3004. There is no laches on the part of the plaintiff to take necessary steps. To meet the ends of justice, a fresh local investigation is necessary.

 

Sadeque (Md) vs Abdul Khaleque 12 BLC 383.

 

Order XXVI, rule 9

 

Since the defend­ant stoutly claims that all the land of suit plot No. 355 has been acquired and now the plaintiff is trying to enter into the land of the defendants in non-suited plot No. 354. In such a situation, local investigation is necessary for the purpose of elucidating the matter in dispute by properly determining the location of the suit land which can only be properly ascertained by local investigation through survey knowing advocate commis­sioner.

 

Sazzad Hossain (Md) vs Kaderia Publication 12 BLC 414.

 

Order XXVI, rule 9

 

Both the Courts below have concurrently found that the dispute in controversy between the parties can be decided on taking evidence. Whether the suit pathway belonged to the Taluk of Hazera Bibi or to the Taluk of Ramananda can be well decided from the documentary evidence if produced in Court by the con­tending parties at the time of hearing of the suit on merit and the claim of plaintiffs exclu­sive use and possession of the suit land from time immemorial is also a dispute in contro­versy which can be well settled by evidence to be recorded at the time of hearing of the suit and cannot be decided on the investiga­tion report of an Advocate Commissioner nor provision of Order XXVI, rule 9 of the Code contemplates the same. It clearly empowered the Court to decide whether such investiga­tion is necessary.

 

Anwarul Islam vs Sarip Hossain 13 BLC 603.

 

Order XXVI, rule 9

 

The last Court of fact has found that the plaintiff has title in the land in suit and he is in possession of the land in suit as the record of right was prepared in favour of the plaintiff, who has been paying rent for the same when the Advocate Com­missioner's report shows that there is no structure of Dagonbhuiyan Charitable Hos­pital and the Thana Health Complex in the land in suit. There is no infirmity in the finding of the High Court Division regarding the right, title and possession of the plaintiff in the land in suit and that claim of the defendants has not been substantiated by oral or documentary evidence.

 

Bangladesh vs Sultan Ahmed 14 BLC (AD) 47.

 

Order XXVI, rule 9

 

It appears that the Court has allowed the prayer for audit by the Investment Board of Bangladesh. The High Court Division has rightly held that such audit is not going to prejudice the petitioner and rightly rejected the revisional application.

 

Abdus Samad Sheikh vs Khaleda Begum 15 BLC (AD) 24.

 

Order XXVI,  rules  9,  10(1)(2)

 

On perusal of Order XXVI, rule 10(2) it provides that acceptance of the report is a part of the Court's function forming the report to be a part of the Court's record and shall be evi­dence in the suit, subject to any objection, if raised, by the parties at the time of final hearing of the suit and that provision has given ample power to the Court to accept or reject the report upon examining the Advo­cate Commissioner in open Court. The said provision of law has given wider power to the Court for evaluating the report of the advocate commissioner along with the other evidence adduced in the suit by the parties concerned. The commissioner's report is to be evaluated in the facts of the case on the evidences adduced and the Court will have wide discretion in the matter.

 

Abdul Latif vs Amvara Begum 13 BLC 777.

 

Order XXIX, rule 1

 

It is contended on behalf of the respondent Nos. 1 to 6 that the respondent No.3 and the General Manager (Finance) aim-Company Secretary are in the clear by virtue of being such of the several functionaries contemplated under Order XXIX, rule 1 as having the authority to sign and verify pleadings as they have indeed done. Given such submissions, it does appear to this Court that the argument as to the ostensible lack of the authority of the above two individuals to so act is without merit. Further, for a proper understanding of the provisions of Order XXIX, rule 1 this Court has deemed it pertinent to probe into those of Order VI, rule 14 as require the signing of pleadings by a party and its pleader, if any. In the event of such a party being a juristic entity as a company it is inevitable that the pleadings shall have to be signed by some person or the other on behalf of the company. Order XXIX, rule 1, it is found, is intended to meet that contingency and its provisions as referred to above aptly facilitate that process. This Court, in this regard, has taken note of the Indian Supreme Court's judgment in United Bank of India vs Naresh Kumar reported in AIR 1997 (SO 3 as upholds that interpre­tation and reading of Order VI, rule 14 together with Order XXIX, rule 1 of the Code.

 

In this regard, it is found that the offices of Vice-Chairman/Chairman and General Manager (Finance)-cum-Company Secretary are sufficiently enabling to clothe such office­holders with the authority as enunciated above and consequently are declaratory of the absence of any infirmity attaching to these office-holders to sign and verify pleadings on behalf of the Company. In dwelling further on this aspect vis-a-vis the respondent No. 3 specifically, the significance of the respondent No. 3 being identified in the Application itself as a shareholder-director has not been lost on this Court. Equally significant is the fact that the peti­tioners do not dispute the status of the respondent No. 3 as either the Vice-Chairman or later the Chairman of the Company. That being the case, and there being nothing on record to show otherwise, the actions of the respondent No. 3 albeit with regard to the swearing of the affidavits and the making of depositions on behalf of the Company may safely be assumed to be authorised by the Company, thereby, consequentially binding the Company.

 

MM Ali Ispahani vs MM Ispahani Ltd (Statutory Original) 14 BLC 416.

 

Order XXXIV, rule 5

 

A preliminary decree for sale of mortgaged property can be enforced only by applying for an order for a final decree in accordance with Order 34 Rule 5 of the Code of Civil Procedure and the limi­tation for such application will be governed by Article 181 of the Limitation Act.

 

Rupali Bank Ltd, Dhaka vs Brick Linkers Ltd 16 BLC (AD) 107.

 

Order XXXVIII, rule 5

 

These factors now collectively contribute to this Court's view that the Order of attachment and the order of restraint evident in the Order dated 25-4-2007 must now necessarily be vacated. That being the case and given that the Com­missioner of Customs by virtue of.section 82 of the Customs Act is now entitled to sell the goods in auction, the goods.

 

KA Lati f vs Olam International Ltd 13 BLC 457.

 

Order XXXIX, rule 1

 

It was the duty of learned Assistant Judge to maintain his injunction order dated 29-1-2004 unless that order is disturbed by any superior Court but without doing so he has violated his own order and has violated the order of the High Court Division. It is the consistent view of our Appellate Division that in an appropriate case the Court in exercise of its inherent power can issue a temporary injunction in mandatory form to restore the status quo ante in the suit. The learned Assistant Judge, Madhabpur is directed to restore possession in 0.033 acre of land of Plot No. 683, khatian No. 279, Mouza Sultanpur, Police Station Madhabpur, District Habiganj, in favour of the petitioner within 7(seven) days from the date of receipt of this order. The learned Assistant Judge is also directed to dispose of the suit as early as possible preferably within l(one) year from the date of receipt of this order.

 

Upendra Chandra Paul vs Md Abdul Qnadir Chowdhury 11 BLC 494.

 

Order XXXIX, rule 1Pre-emption case was allowed ex parte and maintained it upto Appellate Division—

 

Fresh suit challen­ging the said ex parte judgment and order and filed an application for injunction—Not entitled to such an order in a suit so framed.

 

Rayna Begum vs Md Marnfuddin Ahmed 14 BLC (AD) 185.

 

Order XXXIX, rule 1

 

The provision of Order XXI, rule 99 is of no assistance to the plaintiff as well as the suit is not pending against both the parties to the previous suit so as to attract the provision but the applica­tion for temporary injunction is simply designed to obstruct the execution of decree obtained 30 years back by the defendant in the instant suit for declaration of title and recovery of possession at the instance of the plaintiff.

 

Joirunnessa vs Abdul Matnlib 15 BLC (AD) 124.

 

Order XXXIX, rules 1 & 2

 

On the question of maintainability of the suit, we are of the view that, this question cannot be disposed of in deciding injunction matter. Defendants have remedy for burring the suit as they can invoke provisions of Order VII, rule 11 or Order XIV, rule 2 of the Code.

 

Dhaka City Corporation vs MR Trading Co. 17 BLC 159.

 

Order XXXIX, rules 1 & 2

 

Section 8 of the Act imposes prohibition of registration of certain mattes and provides that no "Trade Mark" nor part of a trade mark shall be registered which consists of or contains, any scandalous as designed, or any matter the use of which would by reason of its being likely to deceive or to cause confusion or otherwise, be disentitled to protection in a Court of justice.

 

Wellcome Ltd vs Incepta Pharma Ltd 17 BLC 715.

 

Order XXXIX, rules 1 and 2Inter­locutory order of granting temporary injunc­tion was interfered with by the Appellate Division —

 

In the instant case, the prayer of the plaintiffs for an order of injunction was meritless in the background of national interest, loss to the people of the area out­weighed loss, if any, to the plaintiffs and because of absence of prima facie title to the land in suit.

 

Executive Engineer, Water Develop­ment Board vs Md Moktaruddin 11 BLC (AD) 32.

 

Order XXXIX,  rules  1  and  2

 

The learned District Judge finding the defendants were marketing their product in the name of Spry Tang without having registration granted injunction in favour of the plaintiff. There is prima facie and arguable case for the plaintiff and the trial Court did not commit £ny wrong in granting injunction. The question of determination of the prior use of the trade mark can only he gone into by evidence during trial of the suit.

 

Add Miah vs Shajeeb Corporation 11 BLC 141.

 

Order XXXIX,  rules  1   and  2

 

The letter dated 3-6-03 of the plaintiff must be taken to be one to obviate release of the yarn shipped and that cannot forfeit the plaintiff in asking the bank for stopping payment of the price of at least remainder of the yarn not at all supplied. And defendant No. 1 is not entitled to any payment of the price of yarn which he never supplied. Plaintiff, therefore, no doubt has got an arguable case in respect of 22,030 Ibs of yarn. The view of the learned Joint District Judge that the plaintiff could not establish the balance of convenience and inconvenience in his favour cannot be accepted Appeal therefore, succeeds.

 

Reya Sweaters (Pvt) Ltd vs Sephard Textiles (BD) Ltd 11 BLC 234.

 

Order XXXIX, rules 1 & 2

 

Admit­tedly, the instant suit is a public interest liti­gation brought by the plaintiff in the interest of Rajshahi University. The trial Court complying the guiding principles for passing an order of temporary injunction and being satisfied he granted the temporary injunction arriving at clear prima facie finding in consideration of the documents filed that the appointments have been made in breach and violation of the circulars, rules and proce­dures, guidelines, without public notifica­tion, etc. On the other hand, the appellate Court below has set-aside and vacated the same putting much emphasis on the humani­tarian ground rather than looking into merit of rules and procedures, guidelines, budget­ary provision, requirements, public notification, etc for making such huge appointments. It also appears that the finding of the appel­late Court that the appointments were made in the necessity of the University is also with­out fooling and not supported by any docu­ments filed by the defendants.

 

Abu Aslarn (Md) Advocate, Rajshahi District Bar Association vs Rajshahi University 11 BLC 294.

 

Order XXXIX, rules-1 & 2

 

Miscons­truction and misreading of document is a question of law. The appellate Court below has thus committed error of law in miscons-tructing and misreading those documents. In the instant case, the documents being only reliable documents of facts and evidence for determining the issues involved in the suit non-construction and misreading of the same to find a prima facie arguable case and other principles required for granting temporary injunction, the same cannot be overlooked by the Court. Where the plaintiff never claimed his personal interest any finding and submis­sion centering round the same is miscon­ceived and not maintainable.

 

Abu Aslam (Md) Advocate, Rajshahi District Bar Association vs Rajshahi University 11 BLC 294.

 

Order XXXIX, rules  1  and 2

 

The principles of law governing granting of temporary injunction are firstly, the plaintiff has to establish a prima facie case, secondly, the plaintiff will suffer irreparable loss if the injunction is not granted and thirdly, the balance of convenience and inconvenience is in favour of the plaintiff and against the defendant which are attracted in the instant case. The order of status quo granted by the High Court Division at the time of issuance of the Rule shall continue till disposal of the suit.

 

Abus Sattar Sardar (Md) vs Bangladesh 11 BLC 321.

 

Order XXXIX, rules 1 and 2

 

Since plaintiffs-appellant's Trade Mark "CANON" had been registered earlier as far back as in the year 1977 and defendant-respondent's proposed Trade Mark "CANON" is just in the process of being registered, plaintiff-appel­lant is legally entitled to demand proprietor­ship of the goods in Class 9 which, also, includes Television and, as such, plaintiff-appellant got the legal right to have its Trade Mark "CANON" protected through court of law by way of an injunction. Plaintiff-appel­lant would suffer irreparable loss and injury if defendant-respondent is not restrained by way of an injunction in using, applying and administering its proposed Trade Mark "CANON". It appears that plaintiff-appellant got strong prima facie case in support of being graced with an order of injunction and balance of convenience and inconvenience, also, is in favour of plaintiff-appellant and against defendant-respondent.

 

Canon Kabushiki Kaisha vs Canon Electronics Industries Ltd 13 BLC 256.

 

Order XXXIX, rules 1 and 2

 

It is contended on behalf of the petitioners that the Courts below have failed to appreciate that the facts and circumstances obtaining in the case leads one to the irresistible conclu­sion that the plaintiff petitioners are rightful co-sharers in the property in question and that their brothers defendant Nos. 1-3 by collusion with defendant Nos. 4 and 5 mana­ged to execute and register the fraudulent Bainapatra wherein the property for sale was claimed to be inherited from the mother but in kabalas claiming the same to be acquired by gift made by mother of defendant Nos. 1-3 and, as such the plaintiff needed protection of this Court in order to keep their interest in the property from being jeopardised. The High Court Division upon correct assessment of the materials on record arrived at a correct decision and rightly dismissed the appeal.

 

Kamntnnessa Nilufar vs Mahmudul Faruqne 14 BLC (AD) 87.

 

Order XXXIX, rules 1 and 2Order of suspension without prior notice—Illegal—

 

Admittedly, the suspension order appealed against has been passed without giving any prior notice to the appellant and for that reason the order of suspension has certainly been passed in violation of Regulation 14 of the Recognised Non-government Interme­diate College Teachers (Board of Intermediate and Secondary Education, Rajshahi) Terms and Conditions of Service Regulations, 1979. The respondents in passing such order of suspension indeed, had indulged in accesses as discussed. Under the facts and circum­stances plaintiff-appellant had succeeded in proving that he had prima facie case that warranted an order of injunction by the trial Court and the trial Court without granting the relief has committed illegality.

 

Slwhidul Mam Reza vs Upazila Nirbahi Officer 14 BLC 390.

 

Order XXXIX, rules 1 & 2

 

It appears that the High Court Division rightly held that the plaintiff has no document of title in respect of 7.30 square yards of land and in fact, the plaintiff purchased only 533.33 square yards of land from the earlier lessee. It further appears that the Courts below rightly held that the plaintiff could not make out a prima facie case of title and possession to get the order of injunction and rightly rejected the same.

 

Dr SKM Joynal Abedin vs Bangladesh 15 BLC (AD) 143.

 

Order XXXIX,   rules   1   and   2

 

On appraisal of materials on record it clearly indicates that defendant No. 3, herein oppo­site party No. 1, has been acting as a Nikah Registrar at ward No. 17. Moreover, the case of plaintiff is absolutely a subject matter of evidence. At present he has no prima facie arguable case and will not suffer irreparable loss if injunction prayed for is not granted. Moreso, balance of convenience does not lie in favour of granting temporary injunction, prayed for.

 

Ayub All Khan vs Md Abditr Raqib 15 BLC 46.

 

Order XXXIX, rules 1 and 2

 

Admit­tedly the period of lease of the petitioner expired on 30th Chaitra, 1415 BS and there­fore he does not have any right to ask for the reliefs prayed for in the suit. If he had suffered anything for any act of defendants during subsistence of his period of lease the only remedy for him was to ask for compen­sation. He cannot prevent a public authority from carrying out its functions under the law by taking out an injunction from the Court.

 

Harendra Chandra Barman vs Bangladesh 15 BLC 60.

 

Order XXXIX, rules  1 and 2

 

The plaintiff has no document of title contentious or otherwise that he purchased 730 square yards of land exceeding 533.33 square yards from Plot No. 61. Earlier lessees from whom he purchased 533.33 square yards of land did ot even claim such an inflated area of 730.20 square yards. In fact, principles of injunction have been laid down in consideration of the subject matter of the suit and the nature and extent of right involved therein. It is not everywhere the same. However, by now it has become an established principle of law that a trespasser cannot be favoured with a relief of injunction either temporary or per­petual.

 

Dr SKM Joynul Abedin vs Bangladesh 15 BLC 198.

 

Order XXXIX, rules 1 and 2

 

After appreciating the materials on record it is held that a letter of credit is an independent con­tract and not qualified by the original con­tract of sale though it is based on it. It is also not affected by any dispute between the buyer and seller. When an irrevocable letter of credit is opened and confirmed by a bank, such bank is left with no option but to honour its obligation under the letter of credit and pay. Therefore, the Court below by granting an order of status quo relating to payment under the letter of credit committed an error of law which cannot be sustained.

 

Dutex Enterprise Co. Ltd vs RMS Textile and Apparels Ltd 15 BLC 803.

 

Order XXXIX, rules 1 and 2

 

After scrutiny of the cited decisions, it is held that scarcity of the land and pressure for accom­modation either for residential and commer­cial purposes in urban areas has been growing hand in hand every day while the time for resolution of the dispute is so uncertain that nobody can say certainly when it will finally come to an end. In such a situation right to develop the land in his specific possession cannot be denied by an interlocutory order of injunction which would be inequitable.

 

SM Aynul Kabir vs Kambar Ali 16 BLC 51.

 

Order XXXIX, rules 1 and 2

 

When a particular dispute is in seisin of the Civil Court neither party should be allowed to take any undue advantage and nature and charac­ter of the subject matter of the suit should be protected so long the dispute is pending before the Court. Accordingly, the parties are directed to maintain status quo in respect of manufacturing, distributing, selling and mar­keting of their respective product fairness cream with trade mark "Fair & Lovely" and "Fair & Care" specifically described in the schedule of plaint of the suit.

 

Kohinoor Chemical Co. (BD) Ltd vs Unilever Bangladesh Ltd 16 BLC 60.

 

Order XXXIX, rule 1 & 2

 

Since the Appellate Court, High Court Division as well as Appellate Division have found that over all colour, design and get up of the defend­ant's goods resemble with those of the plaintiff and is likely to cause deception and confusion to the unwary customers which is not desirable in the public interest since the the balance of convenience and inconve­nience is in favour of the plaintiff, who should be allowed to continue marketing his product under the present colour, design and get up.

 

Liberty Foods Company Ltd vs Bombay Sweets & Co Ltd. 16 BLC 712.

 

Order XXXIX, rule 2

 

Without mak­ing payment of supplementary bill the plain­tiffs have no right to institute the suit. The plaintiffs have not come with clean hands. The balance of convenience and the question of irreparable loss are absent in this case. Although the petitioners are not entitled to any order of injunction before making sup­plementary bills but this Court has granted injunction, the petitioner was directed to make payment of all the bills within 60 days failing which the order of injunction shall stand vacated.

 

BM Steel Private Ltd vs Chairman, PDB 16 BLC 424.

 

Order XXXIX, rule 2(3)

 

The Addi­tional District Judge noticed several decision of our Courts and held that the Court is empowered to pass order under section 151 of the Code of Civil Procedure even where the application was made under Order XXXIX, rules 1 and 2 and this can be done for ends of justice and the High Court Division should not interfere against such order under its revisional jurisdiction. The Additional District Judge also noticed the proposition of law as available under section 151 of the Code of Civil Procedure and held that mandatory injunction would be available if dispossession had taken place during the pendency of the suit or during an order of ad-interim injunction. The Additional District Judge came to a clear finding that the plaintiff was in possession of the suit land when the order of status quo was passed and that the plaintiff was dispossessed from the suit market during the pendency of the order of status quo. Accordingly, by judgment and order dated 7-8-2004 the Additional District Judge dismissed the revisional application and affirmed the decision of the trial Court allowing the prayer for mandatory injunct­ion.

 

Abdul Baki vs Faroocjue Ahmed 13 BLC (AD) 128.

 

Order XL, rule 1

 

Law is long settled with regard to appoint ment of receiver in a suit for partition. Appointment of receiver in joint property of a family or co-sharers as of routine has never met the approval of the superior courts. Long line of decisions are there showing complete disapproval to appointment of receiver in such cases merely because of dispute over the property, tainted relationship among the co-sharers or non­payment of share of rent or profit etc. accruing therefrom. A co-sharer in possession in ejmali property has a preferential right to remain in possession until his right is judicially determined.

 

Aisha Begum vs Mozibur Rahman 16 BLC 160.

 

Order XLI, rule 11

 

-An appeal under 196D of the Customs Act preferred before the High Court Division must be disposed of on merit under section 196G(1) as distinguished from a Criminal Appeal or Civil Appeal.

 

Mohitur Rahman (Md) vs National Board of Revenue 16 BLC 661.

 

Order XLI, rule 19

 

It is well settled that the previous conduct of the appellant may be reprehensible but the matter (re-admission of the appeal) cannot be decided on the ground of mere previous conduct. Whether he was prevented by sufficient cause from appearing when the appeal was called on for hearing will determine the outcome of the proceeding under Order XLI, rule 19 of the Code of Civil Procedure. On this count the impugned order cannot be sustained.

 

Ram Krishna Dasvs Osman Gani 14 BLC 551.

 

Order XLI, rule 21

 

The order was passed after hearing the learned lawyers of both the sides and also in their presence and so, the direction of informing the order to the parties was redundant, specially when Note (1) of Rule 388(2) of the Civil Rules and Orders provides that it is for the Advocates to be present at the proceeding to make them­selves acquainted with the order passed and it is not the duty of the officers of the Court to call upon the Advocates to show the orders issued or to inform them of the nature of the orders passed and so, in view of the absence of the signature of the petitioner's Advocate in the margin of the order sheet, it cannot be said that the order was not known to the peti­tioner's Advocate.

 

Manir-un-nessa Khanam vs Syed Madassir Ali 12 BLC (AD) 25

 

Order XLI, rule 22

 

It further appears that the cause of delay in filing cross objection was satisfactorily explained by the peti-tioners but the learned Judge of the Court of appeal below failed to appreciate such explanation. A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree insofar as it is based on that finding.

 

Keshonra Begum vs Klialeda Ahsan 14 BLC 370.

 

Order XLI, rules 22 and 31

 

The judg­ment delivered by the trial Court cannot be treated as a Since the vested property autho­rity did not prefer any appeal or revision against the judgment of the Trial Court, meaning that they are not aggrieved with the decision of the trial Court rather they conceded with the decision of the trial Court, the defendant No.3 claiming himself as lessee under vested property authority though he failed to prove such lease by submitting any document of granting such lease has got no locus standi to file the appeal. He is stepping in the shoes of his lessor but the lessor did not come forward to prefer any appeal or revision, meaning that the lessor conceded with the judgment of the Trial Court or with the claim of the plaintiffs. The plaintiffs asked for further decree for declaration of the title as well as of recovery of khas possession from which they were dispossessed by the defen­dant No. 3 forcibly during pendency of the suit and on payment of proper court fees the plaintiff by amending the plaint prayed for further decree of recovery of khas possession, and the suit was decreed, but nothing was mentioned in the ordering portion of the judgment of the Trial Court, such omission is nothing but a mere clerical mistake made inadvertently, and, as such, the judgment and decree of the Trial Court will be treated as a decree also for declaration of title to the plaintiffs in the land described in schedule 'Ga' as well as for recovery of its khas possession.

 

Sawpan Kumar Sarkar vs Md Fazaluddin 14 BLC 213.

 

Order XLI, rule 23

 

A remand order should not be lightly made if the evidence on the record is sufficient for the appellate Court to decide the question itself. A case should not be remitted for a new trial to enable a party to fill up the lacuna of the case. The application of the plaintiffs under Order XLI, rule 23 is a belated one which has been filed with an ulterior motive to delay the disposal of the case.

 

Aftabuddin (Md) vs Md Akber AH Sheikh 11 BLC 228.

 

Order XLI, rules 23, 24 and 25

 

It is settled principle of law that unnecessary order of remand entails hardship, agony of fresh hearing and additional expenditure and the same is to be deprecated and discouraged as it tends to delay the administration of justice far from advancing its course.

 

Hazrat AH Bhuiyan vs Md Chunnu Sikder 14 BLC 507.

 

Order XLI,  rules  23,  24  and  25

 

It appears that the learned Judge of the Court of appeal below without reversing such findings of facts arrived at by the trial Court or without any independent finding passed the impugned judgment and decree. More over, the learned Judge of the Court of appeal below took notice of the evidences oral and documentary on record, but as a last court of facts failed to weigh and sift the same. The lower Appellate Court was fully competent to decide the case by itself as the evidence and other materials on record were sufficient to enable it to come to a final decision without entailing the parties in unnecessary trouble and expenses and the appellate court shirked its responsibility and thus committed an error of law resulting in an error in the decision occasioning failure of justice in remanding the suit to the trial Court for fresh trial.

 

Abdul Quiyum Jalali Ponkhi vs Md luknwn 12 BLC 573.

 

Order XLI, rules 23, 24 and 25

 

The lower appellate Court was fully competent to decide the case by itself as the evidence and other materials on record were sufficient to enable it to come to a final decision without entailing the parties with unnecessary trouble and expenses and the appellate Court shirked its responsibility and thus committed an error of law resulting in an error in remanding the suit to the trial Court for fresh trial and delivery of fresh judgment.

 

Lutfunnessa & Lutfa Begum vs Abdul Halim Khan 12 BLC 767.

 

Order XLI, rule 27

 

 Introduction of the kabuliyat of 1927 and the Heba-bil-Ewaz of the year 1975 by the defendants to subs­tantiate their claim of acquiring entire land in suit is in no way relevant for the purpose of adjudication of the suit or, in other words, for the determination of the interest of the plain­tiff in respect of the land claimed by him. This being the position the appellate Court was in serious error in allowing the defendants to produce the said two documents as addi­tional evidence and thereupon accepting the said documents as additional evidence and that in sending back the suit to the trial Court for fresh adjudication in the light of the docu­ments which have no relevancy to the subject matter of the suit and would have no bearing on the result of the suit. In that state of the matter the High Court Division was not in error in interfering with the judgment of the appellate Court and thereupon restoring the judgment of the trial Court.

 

Tahedul Islam vs Md Mojibar Rahman 11 BLC (AD) 186.

 

Order XLI, rule 27

 

Since the plaintiffs failed to prove their title the present case is not a fit case for invoking jurisdiction under Order XLI, rule 27 of the Code of Civil Proce­dure for sending the suit on remand to the trial Court for a fresh decision.

 

Hanm-al-Rashid Mollah vs Bangladesh represented by the Secretary, Ministry of Forest 12 BLC (AD) 79.

 

Order XLI, rule 27

 

There is no mate­rials to show that the plaintiffs had ever approached to the trial Court for admitting the plaint of pre-emption case in evidence and the same was refused by the trial Court. So, in view of the Provisions laid down in Order XLI, rule 27 of the Code of Civil Proce­dure, that document cannot be admitted in evidence by re-calling PW 1.

 

Abdul Khair Mollah vs Golafernessa 11 BLC 734.

 

Order XLI, rule 27(1)

 

If the docu­ment has already been considered by the Court below, no question arises to allow a prayer under this provision.

 

Syed Ghulam Shahriar vs Md Abdur Mannan 16 BLC 248.

 

Order XLI, rule 31

 

It appears that the finding of the appellate Court that the appointments were made in the necessity of the University is also without footing and not supported by any documents filed by the defendants. The appellate Court has totally failed to meet and revert the findings of the trial Court. The appellate Court below erroneously came to the finding on mis­reading and on misconstruction of the unlisted documents filed by the petitioner that, there is no prima facie arguable case and balance of convenience and inconvenience for the petitioner will not suffer any personal loss, misconceiving plaintiff's case.

 

Abu Aslam (Md) Advocate, Rnjshahi District Bar Association vs Rajshahi University 11 BLC 294.

 

Order XLI, rule 31

 

In the instant case the High Court Division as the last Court of fact was required to discuss the evidence and to record reason for not placing reliance on the evidence which was considered reliable by the trial Court in making its decision, but said established procedure was not complied with by the High Court Division while reversing the judgment and decision of the trial Court.

 

Sudhir Kumar Das vs Abdul Malek Mia 12 BLC (AD) 1.

 

Order XLI, rule 31

 

The High Court Division without adverting to the findings given by the court of appeal regarding pattan by Basanta Kumar in favour of the plaintiffs by dakhilas, subsequent execution of unila­teral kabuliyats by plaintiffs in favour of Basanta Kumar and possession of the defen­dants in the suit land reversed those finding on reassessment of the entire evidence. Accordingly, the High Court Division com­mitted error of law in making the Rule absolute, which, requires interference by this Court.

 

Promad Chandra Barman vs Khodeza Khatun Bewa 12 BLC (AD) 225.

 

Order XLI, rule 31

 

The lower appel­late Court in reversing the judgment and decree passed by the trial Court did not assign any cogent reason and also did not consider the evidence on record, particularly the evidence of PW 2 affecting the merit of the case.

 

Government of Bangladesh represented by the DC vs Anjum Nahar Khatun 12 BLC 239.

 

Order XLI, rule 31

 

The appellate Court below being the last Court of facts totally failed to take into consideration the above facts and his judgment is riot a proper judgment of affirmance. The Courts below, particularly the appellate Court below, misread the evidence on record of the case and passed their judgment on total non-con­sideration of material facts and on surmise and conjecture. The Court below failed to find from the materials on record that the order of dismissal of the plaintiff-petitioner is thoroughly improper and illegal.

 

Musaraf Sultana vs Principal & Member-Secretary, Kanchipara Mahabidhyalays 12 BLC 505.

 

Order XLI, rule 31

 

Learned Appellate Judge as last and final Judge of fact, though, was required to discuss and consider evidence of PWs 1,2 and 3 in true perspective in the matter of coming to a just decision did not discuss and consider accounts supplied by PWs 1,2 and 3 in right direction and, thus, committed a serious error in finding that statement of PW1 was not supported by PWs 2 and 3 and by this error a failure of justice has been occasioned to plaintiffs-petitioners.

 

Kartik Chandra Mondol vs Zoynal Dewan 12 BLC 652.

 

Order XLI, rule 31

 

It appears that the learned Assistant Judge upon considering the evidence on record came to definite finding that the plaintiff failed to prove that defen­dant compelled him to execute the deed in question at the point of threat and fear. The lower appellate Court as a final Court of fact without any independent findings and with­out reversing such findings of facts came to an erroneous findings. The impugned judg­ment of the appellate Court is not a proper judgment of reversal.

 

Ahmed Ali Daftari (Md) vs Md Iman Ali Daftari 12 BLC 737.

 

Order XLI, rule 31

 

The accepted and settled principle is that a Court, either appellate or revisional, is required to dispose of the case upon assigning reasoning because of which it is persuaded either to affirm the judgment of the Courts below or to set-aside the judgment of the Courts below. The learned Judge in disposing of the instant case has not given any reason from which it can be said that the result arrived at by the learned Judge is on the basis of the reasoning that persuaded him to set-aside the judgment of the Courts below. The Appellate Division expects that in future the learned Judge would dispose of the case in the accepted manner i.e. upon discussion of the materials on record, and thereupon assigning reason in support of his judgment. It may be men­tioned in the instant case in spite of the quality of the judgment the Appellate Divi­sion did not feel to interfere with the same since on perusal of the materials on record the Appellate Division was convinced that although the judgment did not conform to the accepted form or kind, the judgment ought to have but the result arrived at calls for no interference.

 

Ashrafee Begum vs Siddiqur Rahman Patwari 13 BLC (AD) 111.

 

Order XLI, rule 31

 

It appears that the trial Court discussed the evidence and also perused the documents and legal aspect of the case and made his observation that the suit was hit by section 42 of the Specific Relief Act. The learned trial Court further held in his judgment that since PWs 2 and 3 admitted the possession of the defendant in the suit land the plaintiff ought to have sought for recovery of khas possession as consequential relief. But the plaintiff instituted a simple suit for declaration of title which is not maintainable and hit by section 42 of the Specific Relief Act.

 

Abdul Jabbar Bhuiyan vs Kulsiim Banu Bibi 13 BLC 435.

 

Order XLI, rule 31

 

The lower appel­late Court while reversing the judgment of the trial Court is required to reverse the material finding of the trial Court with reference to the evidence on record but the learned District Judge, Brahmanbaria did not do so. The lower appellate Court should assign cogent and reasonable ground in reversing the judgment and decree of the trial Court.

 

Abdul Jabbar Bhuiyan vs Kulsiim Banu Bibi 13 BLC 435.

 

Order XLI, rule 31

 

The High Court Division as it appears reversed the findings of the appellate Court and the trial Court as well without adverting to the reasoning given by the Court of Appeal which is final Court of fact. The impugned judgment is not a proper judgment of reversal. The findings of the Court of Appeal on question of fact is binding upon the High Court Division unless it can be shown that those findings are perverse. In the instant case there is no such finding by the High Court Division regarding the findings of the Court of appeal on question of fact.

 

Abdul Quddus Matabbar vs Yousuf Ali Baijati 14 BLC (AD)132.

 

Order XLI, rule 31

 

The appellate Court has framed independent issue for determination of the facts in issue and matter of controversy between the parties on the basis of the papers and documents submitted by the parties. As the learned Appellate Judge has controverted each and every point of decision that has been arrived at by the learned trial Judge and he has adverted to each and every point that has been decided by the learned trial Judge while dismissing the suit of the plaintiff.

 

Bangladesh Railway Board vs Md Atar Ali 14 BLC 556.

 

Order XLI, rule 31

 

It is found that the trial Court dismissed the suit for permanent injunction on contest mainly on the ground that the plaintiffs had failed to give a clear description of the suit land. The lower Appel­late Court in its turn not only failed to reverse this finding of the trial Court, also as being final Court of fact, failed to come to its own independent findings on the issues involved in this case. Thus it appears that the impug­ned judgment is not a proper judgment of reversal.

 

Abdur Rouf vs Abdul Odued Jaigirdar 14 BLC 805.

 

Order XLI, rule 31

 

It is evident that the plaintiffs have exhibited documents and produced witness before the Court which is considered by the trial Court but the Court of appeal has not considered those. The appel­late Court being the last Court of facts with­out considering material facts and circum­stances as well as oral and documentary evi­dence has set-aside the judgment and decree passed by the trial Court in an unlawful manner.

 

Shamsul Huq Sarder vs Rahela Khatun 14 BLC 394.

 

Order XLI, rule 31

 

It transpires that the trial Court discussed the evidence and also perused the relevant papers and documents and considered the material evidence on record, particularly Salishnama produced by the defendant and made his clear obser­vation. The lower appellate Court without applying his judicial mind and without dis­cussing the evidence on record and without proper assessment of the evidence gave much importance on the question that the Salishnama which was not proved and exhibited it cannot be considered but the learned Sub-ordinate Judge, Nawabganj ought to have considered the facts and cir­cumstances of the case as well as section 56 of the Evidence Act wherein it has been laid down that fact judicially noticeable need not be proved and no fact of which the Court will take judicial notice need be proved.

 

Syeda Bibi vs Helal Uddin 14 BLC 204.

 

Order XLI, rule 31

 

The High Court Division held that on misreading of evidence and on non-consideration of the evidences on record the Courts below found that the defendant has been enjoying and possessing the suit land, this sort of finding is nothing but illegal occasioning failure of justice. On the contrary, the plaintiffs have been able to prove their right, title and possession over the suit land.

 

Jamira Khatun vs Fazlul Karim 15 BLC (AD) 236.

 

Order XLI, rule 31

 

It is now well settled that mere omission to assign reasons in the impugned order is not fatal if in law the order is sustainable. So, it is a mere irre­gularity and not an illegality and the impugned judgment and decree cannot be knocked down on that Count.

 

Kazi Nasirul Huq vs Mizanur Rahman Talukder 15 BLC 380.

 

Order XLI, rules 31

 

While allowing the pre-emption the learned appellate Judge was pleased to affirm the judgment of the learned trial Judge by disallowing the appeal. While the learned appellate Judge is affir­ming the judgment of the trial Court he need not discuss each and every point and he can even deliver a judgment by discussing each and every point that has been discussed and found by the learned trial Judge.

 

Fazal Hossain vs Md Helal Mia 16 BLC 75.

 

Order XLIII, rule 1

 

The learned Judge of the trial Court appears to have passed his sweeping remark in a very undesirable manner and it is certainly unbecoming of a judicial officer. Such a controversial issue of the suit should not have been answered in such a way and made the only basis for rejection of the application for temporary injunction in the manner he passed the impugned judgment and order. The disputed issue regarding the resignation of the plaintiffs from the memberships of the Executive Committee is necessarily a matter to be decided in the suit by taking evidence at the time of trial.

 

Anoivar Hossain Ann vs Registrar, Divisional Co-operative Office 17 BLC 334.

 

Order XLIII, rule 1

 

It is well settled that the previous conduct of the appellant may be reprehensible but the matter (re-admission of the appeal) cannot be decided on the ground of mere previous conduct. Whether he was prevented by sufficient cause from appearing when the appeal was called on for hearing will determine the out­come of the proceeding under Order XLI, rule 19 of the Code of Civil Procedure. On this count the impugned order cannot be sustained.

 

Ram Krishna Dasi vs Osman Gani 14 BLC 551.

 

Order XLVII, rule 1

 

Petition for review does not come within the purview of Order XLVII, rule 1 of the Code of Civil Procedure.

 

Abul Kashem vs Major General Mahmitdul Hasan (Rtd.) 17 BLC (AD) 160.

 

Order XLVII, rule 1

 

A well settled principle of law is that a judgment pro­nounced by a competent Court must be accepted and implemented and departure therefrom is permissible only on fulfilment of certain conditions. It should not be forgotten that a review is not an appeal in disguise whereby an erroneous decision is reheard and corrected. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition through different counsels of old and over­ruled arguments cannot create a good ground for review. An application for review of a judgment may be made on any of the following grounds: discovery of new and important matter or evidence or mistake or error apparent on the face of the record or any other sufficient reasons.

 

Abrara Begum vs Hosneara Begum 11 BLC 204.

 

Order XLVII, rule 1

 

Since the subject matter of the Title Suit No. 634 of 1970 out of which Title Appeal No. 166 of 1973 arose was quite different and distinct from the relief sought through review of decree in Title Appeal No. 166 of 1973, i.e. seeking of relief against the decree passed in Title Suit No. 198 of 1970, the respondent was required to file separate suit seeking setting-aside of the decree earlier obtained by the appellant in Title Suit No. 198 of 1970. The High Court Division and the appellate Court lost sight of the matter that respondent's endeavour to have the relief against the decree passed in Title Suit No. 198 of 1970 upon resorting to review of the decree passed in Title Suit No. 166 of 1973 was misconceived one and also was not legally well founded.

 

Matiar Rahman vs Assistant Custodian of Enemy Property Lands & Buildings 12 BLC (AD) 184.

 

Order XLVII, rule 1

 

The appellants have failed to make out any case calling for the review prayed for as none of the ingre­dients as spelt out in Order XLVII, rule 1 of the Code of Civil Procedure or Order XXVI, rule 1 of the Appellate Division Rules is pre­sent in this case to lay our hands to review the impugned judgment. In the instant case, there is no reasonable ground to justify the action of the respondent on the doctrine of necessity since the impuged order of deten­tion of the respondent was made, according to the appellants, with the apprehension that somebody else (the students community threatening to move to Sena Bhaban) may endanger public order due to some utter­ances of the detenu and, as such, this Court in the impugned judgment found the order of detention to have been passed without lawful authority. The plea of doctrine of necessity is not warranted in the facts and circumstances.

 

Bangladesh vs Mostafizur Rahman 12 BLC (AD) 193.

 

Order XLVII, rule 1

 

On scrutiny of the records, it appears that the learned District Judge very laboriously scrutinised the judgment passed in the suit, taking into consideration the evidence on record, as such, travelled far beyond the scope of rule 1 of Order XLVII of the Code. The learned District Judge dealt with the matter as if it was a First Appeal, as sxich, committed an error of law. Under such circumstances, the judgment and decree passed by the learned District Judge in exercise of his jurisdiction under section 115(2) of the Code, requires to be set-aside.

 

Shahjahan (Md) vs Hamdon Nessa 12 BLC 727.

 

Order XLVII, rule 1

 

Review is not a rehearing of a case. Review is not an appeal or, to put it differently, Review is by no means an appeal in disguise whereby an erroneous decision stands corrected. Not mere error of fact and law, but error apparent on the face of the record is a ground for Review. Review lies only on a patent error. There is real distinc­tion between a mere erroneous decision and an error apparent on the face of the record. Error apparent on the face of record is an error which can be seen by mere perusal of record without reference to any other matter and to find out such error one has not to scrutinise the evidence or record but it should be self-evident from a perusal of the record itself and can be pinpointed without elaborate examination.

 

Farmisi Khatun vs Md Yasin Degree College 12 BLC 762.

 

Order XLVII, rule 1

 

In the judgment we find apparent mistake in the face of the record that the Court erroneously considered the petitioner to be a resident of another place. Further, the Court transferred Title Suit No. 83 of 2005 without issuing any Rule. This is also a mistake committed by this Court which is apparent from the face of the record. In view of that, we find merit in the review petition.

 

Mainul Alam vs Anjera Begum 13 BLC 935.

 

Order XLVII, rule 1

 

In the instant case, the suit was decreed by the trial Court and such decree was affirmed by the appellate Court also. The judgment-debtor defendant has got ample scope to file revision before this division if he feels aggrieved with the judgment of the appellate Court, but without filing any revisional application the defendant filed the Review Case in a manner which is apparently not legal, and it is also apparent from the application (Annexure-A to the revisional application) that the learned Joint District Judge had been proceeding with the Review Case in an illegal manner. On perusal of the cited decisions it appears that the review petition which is numbered as a Miscellaneous Review Case itself is not maintainable and there is no illegality with the impugned order.

 

Bangladesh vs Md Golam Ambia (Harun) 14 BLC 710.

 

Order XLVII, rule 1(1)

 

Reading the grounds for review taken in the petition of Review Miscellaneous Case No.33 of 1996 it appears that the petitioner sought oppor­tunity for rehearing of the matter sitting over its own judgment passed by the appellate Court which is not permissible in law as provided in Order XLVII, rule I of the Code.

 

Abdul Aziz Matubbar vs Bangladesh 14 BLC 48.

 

Order XLVIII, rule 1

 

The Full Bench considering sections 6, 22, 24 and Order XLVIII Rule 1 of the Code of Civil Procedure, section 8 of the Suit Valuation Act, 1887 as amended by the Civil Courts (Amendment) Act, 2001, sections 8,11,19 and 21 of the Civil Courts Act, 1887 and other relevant provi­sions of law has come to the conclusion that the District Judge has no jurisdiction to hear the revisional application against the order of the Joint District Judge in a suit the valuation of which is above Tk. 5,00,000 (Taka five lac) and in such matters the revisional application shall lie before the High Court Division under section 115(1) of the Code of Civil Procedure.

 

Bangladesh vs AHM Khurshed Ali 13 BLC (AD) 114.

636

Commission of Inquiry Act, 1956

Citation: 15 BLC 506

Case Year: 1956

Subject: Commission of Inquiry

Delivery Date: 2018-06-11

Commission of Inquiry Act, 1956

[VI of 1956]

 

Section 3

 

The Election Commission without any sanction of law constituted the Commission of Inquiry by Notification dated 24-3-2009 taking recourse of Section 3 of the Commission of Inquiry Act, 1956 to inquire into the matters relating to election dispute. Government having realized the constitution of the Commission of Inquiry by the Election Commission was without any sanction of law, gave post facto validation by the Gazette Notification dated 30-5-2009. By such giving post facto validation the illegality committed by the Election Commission in forming the Commission of Inquiry cannot be cured.

 

Ataur Rahman vs Election Commission 15 BLC 506.

637

Companies Act, 1994

Citation: 14 BLC 636, 14 BLC 377, 16 BLC 173, 15 BLC 91, 11 BLC 647, 14 BLC 416, 11 BLC 111, 15 BLC 655, 14 BLC 34, 15 BLC 792, 12 BLC 559, 14 BLC 85, 17 BLC 851, 15 BLC 390, 17 BLC (AD) 1, 11 BLC (AD) 67, 16 BLC 224

Case Year: 1994

Subject: Companies Act

Delivery Date: 2018-06-11

Companies Act, 1994

[XVIII of 1994]

 

Sections 5(GaGa) & 27(KaKa)

 

The Companies Act. Therefore, the Company being a Public Limited Company is to be treated as a "TKf ftfjlfc £ffs&R" of the directors of the Company. In view of the above, the Company being a " of the petitioner and Company admittedly being a ", the name of the petitioner as a director of the Company was included in the CIB report in accordance with law. So far the liability of the petitioner as a guarantor for loan is concerned, Mr Hossain admits the liability of the petitioner as a guarantor for the loan. However, his argument is that the petitioner's name as a guarantor cannot be included in CIB report as a "Wrr^t *H 3fM" It has already been decided that the name of the petitioner is legally published in the CIB report as a director of the Company, it is not necessary to decide this question in this writ petition.

 

AKM Mayeedul Islam vs Bangladesh Bank 14 BLC 636.

 

Sections 12 & 13

 

Upon the learned Advocate's explanation and submission to that effect this Court is satisfied that the proposed alteration will secure to the Company an enhanced capacity to make a foray in an expanded area of business as would prove economically beneficial for it. It also appears to this Court that such proposed alteration/addition to the Objects Clause will not be in conflict with the objects as otherwise already specified in the MoA.

 

Sunirmal Chaudhuri vs Registrar of Joint Stock Companies and Firms 14 BLC 377.

 

Sections 12 and 13Amendment of object clause of Memorandum of Association can be confirmed, if proposed addition in object clause relate to carry on its business more economically and more efficiently.

 

Shasha Textiles Ltd vs Registrar, Joint Stock Companies 61 Firms (Statutory Original) 16 BLC 173.

 

Sections 34 and 38

 

It appears that if there is any conflict between the Companies Act, 1994 and sub-section (2) of section 31, of the Ordinance, the provisions of the Ordi­nance shall prevail. Therefore, the Memoran­dum and Articles of Associations cannot override the terms of the sections mentioned before. Regulations 5(2)(iv) and 14 have been in the Listing Regulations of the DSE since 1996. The petitioner-company has been incorporated knowing fully well about all the existing laws of the country. At this stage, the petitioner-company cannot take a different plea contrary to the laws existing at the time of its incorporation.

 

One Bank Ltd vs Bangladesh 15 BLC 91.

 

Sections 37 and 43

 

It is submitted that the fact that the shares are being held in a fiduciary capacity known to the respondents and that notwithstanding the absence of documentary evidence, it is widely known by the shareholders of the aforesaid companies and others that they are not holding the shares on their own behalf but as trustees thereof. In the absence of any evidence in support of the petitioners' case and further having regard to the provisions of section 37 of the Companies Act, 1994, it appears that there is no merit in these applications.

 

Suraiya Begum vs Eastern Housing Ltd 11 BLC 647.

 

Sections 38, 43 and 44

 

This Court now finds that in the facts and circumstances this Application has merited intervention by this Court by virtue of its authority under section 43 of the Act only to the extent of recognising the following claims: (i) 2,000 ordinary shares (pre-bonus) i.e. 5,000 ordinary shares (post-bonus) owned and acquired by the petitioner No.l from MAHI in October 1971; (ii)l,923 ordinary shares (pre-bonus), i.e., 4,807 ordi­nary shares (Post-bonus) owned and acquired by the petitioner No. 2 from the res­pondent No. 9 Mirza Zia Ispahani; and (iii) 3,000 ordinary shares (Pre-bonus), i.e. 7,500 ordinary (post-bonus) owned and acquired by the petitioner No.3 from his sister, Mariam Ispahani.

 

Accordingly, this Court hereby directs the rectification of the share register of the Company by cancelling and deleting all previous entries pertaining to the 5,000 post-bonus ordinary shares, 4,807 post-bonus ordinary shares and 7,500 post-bonus ordi­nary shares that are now found by this Court to beneficially belong to the petitioner Nos. 1, 2 and 3 respectively and to have the names of these three petitioners to be recorded in the share register upon such cancellation and deletion. This Court further directs the respondent No.l Company to file pursuant to Section 44 of the Act a notice of the rectification of the share register with the respondent No.7 Registrar, Joint Stock Companies and Firms, within 15 days ffom the date of the issuance of a certified copy of this judgment and order.

 

MM AH Ispahani vs MM Ispahani Ltd 14 BLC 416.

 

Section 43

 

Beyond the petitioners knowledge, their shares were transferred by fraudulent manner and they were neither informed nor have they executed any instru­ments nor received any consideration for the alleged transfer. The pleadings made in the application have been supported by oral evidence of petitioner witness (PW) Md Zahirul Islam. The petitioners have prima-facie right and title to the shares in question and the same were fraudulently transferred without any legal basis or lawful authority. The petitioners have legal right to possess the shares in question.

 

Abdur Rahman vs Swndesh Paribahan Ltd 16 BLC 416

 

Section 43

 

It appears that the present application for rectification of the share register is not a simple one for adjudication in summary manner and need be adjudicated upon after taking expert advice as to the signatures appearing in the original docu­ments, copy of which have been annexed with the affidavit-in-opposition, and should not be decided in this summary proceeding under section 43 of the Companies Act.

 

Nurun Nahar Zaman vs Sea Pearl Lines Ltd 11 BLC 111.

 

Section 43

 

Under the facts and cir­cumstance of the case, it is apparent that the respondent No.3 received a total amount of Taka 5,00,22,000 from the petitioner No.l from the period from 25-5-2000 to 25-2-2001 while only one lac shares were issued in favour of the petitioner No.2 having the face-value of Taka 1.00 crore but utilized the rest of the money for other purposes. It is apparent from the facts as transpired that Taka 4,00,22,000 has been utilized for the purposes other than those of the petitioners. Since the respondent Nos. 2 and 3 utilized Taka 1.00 crore each out of the aforesaid funds of the petitioner No.l, to procure their one lac shares each in the respondent-bank, they are obliged to return those two lac shares in favour of the petitioner No.l. The respondent Nos. 1 and 4 are directed to recti­fy their register of shares accordingly, showing the petitioner No.l as share-holders of two lac shares of the respondent-bank since 2-4-2002 in place of the respondent Nos. 2 and 3. Since shares were not procured with the rest of the funds of Taka 2,00,22,000, prayer for recovery of the said funds, cannot be allowed in the present proceedings. Under such circumstances, the respondent-com­pany is directed to rectify its register of shares in accordance with the directions made above.

 

M Nur Hussain vs famuna Bank Ltd 15 BLC 655.

 

Section 43

 

The petitioner filed an appli­cation under section 43 of the Companies Act, 1994 for a rectification of the share register of Hotel Miami Limited ("the Company"). This Court finds that there is nothing in the facts and circumstances before this Court that attests in any way to the fact that respondent No. 2, subsequent transferee of the 990 shares, is not indeed, a transferee for good consideration acting in good faith in the absence of the notice of the Agreement, or indeed, of the subsequent Court proceedings initiated by the petitioner.

 

Fariduddin Ktvm (Md) vs Hotel Miami Ltd 14 BLC 34.

 

Sections 45 and 73

 

This Court finds, hat there is nothing to be read into the referred provisions of the Company's Articles as can be said to limit either the petitioners' entitlement to relief under Section 233 of the Act or indeed the authority and discretion of this Court to entertain, consider and adjudge on the same. The Company shall be bound by the provisions of Section 233(4) of the Act in this regard and is cautioned that it shall not be permitted to effect any amendment to the formulation of Article 39 above without the leave of this Court. It will not be sufficient for the respondent Nos. 3, 4 and 5 to merely confine themselves to a superficial and cos­metic exercise in reidentifying the respon­dent No. 6 entity by changing its name, but it shall be incumbent on them pursuant to this Judgment and Order to take all additional, physical, administrative, logistical, infra-structural and legal measures to ensure within 8(eight) weeks from the receipt of a certified copy of this Order a total separation of the affairs, management and business activities of the Company and the respondent No. 6 entity, notwithstanding, that there may be a common directorship of the two entities to an extent.

 

Amina Alam vs Shotodol Property Development Ltd 15 BLC 792.

 

Sections 59 and 60

 

A perusal of the two resolutions adopted upon due compliance with statutory formalities shows that the reduction finally attained appears to bear a direct correlation with the equity participa­tion figures specified by the Bangladesh Bank in Annexure-'C". In the light of that matter, the High Court Division sees no impediment, but rather a requirement, in the reduction of the share capital of the Company and for that reason is inclined to allow this Application.

 

Mostafa Shiblee vs Registrar, Joint Stock Compa­nies and Firms 12 BLC 559.

 

Sections 81(2) and 85(3)

 

The Associa­tion by its very nature has a beneficial aspect to its broad objectives, and the submission of Mr Ahmed that failing a condonation of delay as prayed for the Association and its members will be prejudiced irreparably, this Court is inclined to allow this Application. Accordingly, the delay as prayed for is condoned and the Association is hereby permitted to call its 22nd AGM for the year 2003, and the subsequent 23rd, 24th, 25th and the 26th AGMs for the subsequent years of 2004, 2005, 2006 and 2007 by 31-12-2007.

 

Abu Taker (Md) vs Registrar of Joint Stock Companies and Firms 14 BLC 85.

 

Sections 81(2) and 85(3)

 

Under section 81(2) of the Act, only 'any member' can file an application, whereas under section 85(3) only 'any Director' or 'any Member' (who would be entitled to vote in the meeting) can file an application before this Court for an order to call, hold and conduct a meeting in respect of calling which default has been made or which cannot be called and held owing to some impracticability, as the case may be.

 

Anwarul Alam Chowdhury vs Registrar Joint Stock Companies and Firms 17 BLC 851.

 

Section 81(2) and 85(3)

 

The High Court Division condones the delay for calling and holding the AGMs for the years 2003, 2004, 2005, 2006 and 2007 being the 22nd, 23rd, 24th, 25th and 26th AGMs and permits the Company to call and hold the said AGMs for the said years by 30-9-2008. The permis­sion is so granted upon the Court being given to believe that the requisite financial state­ments relevant for the 22nd, 23rd and 24th AGMs have already been prepared and have been audited and approved for all the relevant financial years and were in fact placed before the three abortive AGMs held together on 13-5-2006 for the three years in question, but which by dint of this Judgment and Order now stand cancelled.

 

Mustafa Kamal Mohiuddin vs Registrar, Joint Stock 13 BLC 692.

 

Section 151

 

The Company has over the years introduced a substantial number of new and innovative technology in the phar­maceutical industry and has earned a good­will and reputation as an innovative and technology-driven Company that has merited the SEC's favourable consideration of the Company's initiative to launch its IPO. Accordingly, the delay of approximately 7 (Seven) years in the proper filing of the Returns of Allotment of shares of the Com­pany is condoned and the time for filing the same is hereby extended. The Respondent Registrar, Joint Stock Companies and Firms is, therefore, directed to accept the said Returns of Allotment within 1 (One) month from the date of the drawing up of this Order.

 

Ebadul Karim, MD, Beacon Phar maceuticals Ltd vs Registrar of Joint Stock Companies and Firms 15 BLC 476.

 

Sections 228 and 229

 

With the modification as directed earlier being duly effected, and in light of the fact of the common shareholding and management of both the Transferor and the Transferee Companies, this Court sees very little in the facts and circumstances of this case that may prevent this Court from approving the Scheme.

 

Dora and Company Ltd vs Registrar, Joint Stock Companies and Firms 15 BLC 390.

 

Section 193

 

In exercising power under section 193 of the Act in certain matters the Registrar is required to perform quasi-judicial function and is authorized to make some investigation as may be found neces­sary for discharging his duties including the right of hearing before imposing fine to negligent or defaulting companies, also by engaging section 397, read with section 393 of the Act, to lodge complaints in appropriate Court against those who make false state­ments through documents required by or for the purpose of any provision of the Act, but such quasi-judicial power in no way can be stretched to conduct a hearing as to the managing directorship of the Company which is the domain only of a competent Court.

 

Ok-Kyung Oh vs Tae-Hung Packaging (BD) Ltd 17 BLC (AD) 1.

 

Section 233

 

In the instant case the respondent No.l, who was a director as well as a joint signatory for operating the bank accounts of the company, also had a legitimate expectation to remain as such and moreover, his investment in the Company has been struck off because of his removal from directorship of the company and no opportunity at all was given to the respondent No.l to remove his capital upon reasonable terms and, as under section 233, the Court in a fit case may pass appropriate order and accordingly, the High Court Division gave direction upon the appellant Nos. 2 and 3 to purchase the shares of the respondent No.l.

 

HBS Association (Pvt) Ltd vs Professor Shahabuddin Khaled Chowdhury 11 BLC (AD)67.

 

Section 233

 

There being no resolution authorising the respondent No. 3, the Execu­tive Director, to exercise the authority under Article 82 of the Articles of Association of the Company and there being no necessity for such sale, it cannot be said to be bonafide and the respondent No. 3 has acted illegally and without lawful authority and by such illegal and unlawful action of respondent No. 3, the right, title and interest of the Company on its property have not been affected in any way and the respondent Nos. 6-8 have not acquired any right, title and interest on the land of the company. The sales have no validity and effect in the eye of law.

 

Anwar Hossain (Md) vs Uttara Valley Ltd 11 BLC 157.

 

Section 233

 

This case is nothing but one of the petitioner as Chairman and Director of the Company being faced with an allegation of secret profit in breach of his fiduciary duty as a director vis-a-vis the Company as has been dealt with by the Company adequately in bringing the process of enquiry and accountability to fully bear upon the petitioner in the perceived best interests of the Company. The actions of the BOD vide the resolution dated 10-5-2006 merely reflects a part of that overall exercise aptly undertaken. In that view of the matter, there is no justification in this application being brought by the petitioner for protection of his interest as a minority shareholder under section 233 of the Act.

 

Shahjahan Miah vs Car Diagnostic Centre Pvt Ltd 13 BLC 168.

 

Section 241

 

The High Court Division was very much conscious of the broad fact of huge loan liabilities of the Company and was on the view that the same has to be put at halt and also considering the provision of Section 241(v)(vi) of the Companies Act deemed it just and equitable that the Company should be ordered to be wound up. Accordingly, allowed the application for winding up of the Company and appointed official receiver as the liquidator and passed other incidental orders.

 

Prime Finance and Investment Ltd vs Delwar H Khan 15 BLC (AD) 170.

 

Sections 241, 245 and 253

 

Referring to the provision of section 253 of the Act, learned Advocate for the petitioner submits that the Court has been empowered to stop the winding up proceeding altogether, if it deems fit to do so. The winding up pro­ceeding in respect of Consumer Testing Labo­ratories Limited is hereby stayed altogether. The Official Liquidator is directed to hand­over the assets and properties, both movable and immovable, of the company to the share­holders within a period of 4(four) weeks from the date of receiving the certified copy of this order.

 

Consumer Testing Laboratories Ltd vs Joint Stock Companies & Firms 16 BLC 224.

638

Companies Profits (Workers Participation) Act, 1968

Citation: 12 BLC (AD) 109

Case Year: 1968

Subject: Companies Profits (Workers Participation)

Delivery Date: 2018-06-11

Companies Profits (Workers Participation) Act, 1968

[XII of 1968]

 

Sections 3, 5 and 7

 

The scope of action as contemplated under section 5 is of little con­sequence to the workers although a scheme of the Companies Profits (Workers' Participa­tion) Act, 1968 confers a right on the workers to have such Fund established for their benefit. Section 5 therefore, offers a limited scope for redressal of the grievance of the aggrieved workers when the company refused to establish such Fund. In case a company to which the scheme under the Act applies defaults to establish such Fund any collective bargaining agent or even a worker may apply to the Labour Court under section 34 of the said Ordinance for enforcement of such right guaranteed or secured to it by law.

 

Hotel Agrabad Ltd vs Chairman, First Labour Court 12 BLC (AD) 109.

639

The Constitution of Bangladesh, 1972 (Part-1)

Citation: 15 BLC 531, 12 BLC 484, 11 BLC (AD) 156, 13 BLC 749, 13 BLC 121, 16 BLC 10, 14 BLC 694, 12 BLC 792, 15 BLC (AD) 49, 15 BLC (AD) 25, 14 BLC 488, 11 BLC 561, 14 BLC (AD) 62, 15 BLC 145, 14 BLC 259, 14 BLC (AD) 62, 15 BLC (AD) 49, 12 BLC 22, 17 BLC 531, 11

Case Year: 1972

Subject: Constitution of Bangladesh

Delivery Date: 2018-06-25

Constitution of Bangladesh, 1972

 

Articles 1, 7, 28(4), 29(3), 31, 59, 60, 102, 145, 152(1)

 

The Peace Accord does not in this Court's opinion neatly fall into the category of Article 145 contracts and deeds or indeed Article MSA international treaties. It is clearly not a treaty as not being entered into between independent entities or commu­nities having the right of self-government on account of one party to the Peace Accord, that is, the PCJSS not possessing such right of self-government. Regional Council Act is nothing but a mere colourable piece of legislation and must on this ground alone by struck down as being ultra virus of the Constitution. In arriving at this finding, this Court has also considered a related aspect/feature in the Regional Council Act, which gives further credence to the unconstitutionality of the said Act. Mr Razzaq has submitted that for the Act No.12 of 1998 to be focused wholly on promoting the interests of people living in a particular territory and in that process inherently permitting of a carving out of a specific territory of the Republic as the base operation of the Regional Council is an endorsement of the notion of autonomy or devolution lien to the Constitution. Given this Court's reading of the entire scheme of the Regional Council Act this Court finds merit in that submission and there appears to be nothing on record to convince this Court otherwise than that the said Act purports to create a territorial unit without legal or cons­titutional sanction. Considered within this broader scheme of the Original Acts, there is nothing found in sections 50 and 53 that in the view of this Court has the potential of ushering in autonomy in its broader sense as an expression of self-determination and on that ground this Court is now disinclined to interfere with these provisions being sections 50 and 53 of the three Hill District Council Acts. This larger objective in this regard should ideally be to provide the notion of equality Article 27 of the Constitution an interpretation encompassing the notion of inclusiveness in the broadest sense so that even actions or legislation under Articles 28(4) and 29(3) will permit, at the end of the day, of a promotion of pluralism in a partici­patory democracy. Against that backdrop, section 6 of the 1998 Acts as amending section 4 of the 1989 Acts endorsing the authority of a Circle Chief, on the basis of a certificate issued by the headman of the village, to decide whether a person is a non-tribal or not appears indeed to contravene the provisions of Articles 27, 28(1), 29(1), and 31 of the Constitution on the fundamental ground that the 1989 Acts as amended provide on further objective yardstick against which a decision to grant or not such a certificate may be measured. The same provisions of the Consti­tution are validly submitted to invalidate the provisions of section 17 of the 1989 Acts as amended by section 11 of 1998 as requires a person to be both an owner of land in the CRT as well a permanent resident in order to vote in the local government council elections. That in this Court's view, has the practical effect of denying a non-tribal citizen to be a voter in any election in CHT whereas he has reserved to him the right to do so any where else in Bangladesh under the Constitu­tion. It will be prudent, however, to note in this regard that the rule-making authority of the Government under section 64 of the 1989 Acts ought to have been actively exercised by the Government by now to overcome the objections raised with regard to the con­tinued of such of the above-referred provi­sions of the 1989 Acts as have been found by this Court to be in violation of Article 27, 28(1), 29(1) and (2), and 31 of the Constitu­tion.

 

Badiuzzaman vs Bangladesh 15 BLC 531.

 

Articles 4(3) and 102

 

Considering the legal position that the election symbols boat, plough and Sheaf of Paddy were included in the Conduct of Election Rules, 1972 made by the government in exercise of the powers conferred by Article 96 of the Representation of the People Order, 1972 which was pub­lished in the Bangladesh Gazette Extra­ordinary on December 27, 1972 and accor­dingly the Election Commission has been allocating those symbols on the applications made by the political parties. Neither the petitioner nor any person interested in the matter nor any authority who are main­taining the Monograms did come forward to challenge the Rules stating that these symbols cannot be used as election symbols as the use of those symbols will create grave confusion amongst illiterate people of the country. Furthermore, there is no legal bar in using those symbols as election symbols.

 

Advocate Md Shahadat Hossain vs Bangladesh 12 BLC 484.

 

Articles 7-11, 27-28, 36-40, 65, 102, 119, 121,142 and 150

 

Article 65(3) of the Consti­tution was never deleted and it remained a part of the Constitution and the impugned amendment has substituted the present Article 65(3) and added paragraph 23 in 4th Schedule to the Constitution providing for 45 seats exclusively reserved for women to be elected by the members of the Parliament as an interim measure in between the present Parliament and next Parliament which is not incompatible with the preamble of the Constitution, or its basic structure or to the Article 150 of the Constitution and, as such, under no stretch of imagination it could be said that the amendment/substitution of Article 65(3) is ultra vires the Constitution nor the same is viola tive of Article 28(4) of the Constitution which provides that nothing in this Article shall prevent the State from making any special provision in favour of women through legislative processes.

 

Farida Akhter vs Bangladesh represented by the Secretary, Cabinet Division 11 BLC (AD) 156.

 

Articles 7, 102 and 123(3)(4)Per Mr Md Ashfaqul Islam J (agreeing) :

 

To my interpretation, certainly this provision is open to liberal and flexible construction of the provision. Circumventing the same by giving a rigid and mandatory meaning ould defeat the whole purport of the Cons­titution as enshrined in Article 7 where will of the people is sublime. But if the same is kept open to liberal interpretation, any situation of grave exigency can be taken care of by consensus and at the same time the unscrupulous infiltrators would never dare to creep in for destroying democratic process in any manner by taking advantage of any crisis which might be created on a pretext of rigid interpretation of Article 123(3) of the Constitution. May be for that reason the framers of the Constitution has kept Article 123(3) open unlike Article 123(4) which is qualified by a proviso.

 

Masood R Sobhan vs Election Commission 13 BLC 749

 

Articles 7(2), 26(2), 31, 32, 33, 36, 37, 38, 39, 40, 42, 80, 93, 102, 141A(1), 141B, 141C

 

The Article 26(2) has debarred the State from making any law inconsistent with the Articles 27 to 35 of the Constitution and if so made, the same is void. Accordingly, any provision of law or rule, made inconsistent with the Articles 27-35, stands void and the Court has the authority to declare such law or rules, inconsistent with the Articles 27 to 35, to be void and the void "law or rules" cannot be applied in any Court of law or before any legal forum. It has been pointed out that the penal provisions have been included in the Rules 3,4,5,6, 7,8 and 151, of the EPR. A law, curtailing or infringing the existing right of a citizen, guaranteed under the Constitution or any existing law, can only be made under the provision of the Constitution i.e. by Parlia­ment, through Act under Article 80, or by the Honourable President through Ordinance under Article 93, but it appears that in EPR, framed under EPO, the penal provisions have been incorporated therein without authority and or beyond the authority delegated to the Government by the EPO and those are also inconsistent with the existing laws as well as the provisions of the Constitu­tion. Therefore, such penal provisions in the EPR are void. Similarly, the provisions in the Rules 10(2), 11 and 19 of the EPR curtailing the powers to grant bail by Courts, being inconsistent with the provisions of Articles 31-35 of the Constitution as well as sections 426 and 496 to 498 of CrPC are also void, so not applicable before any lawful authority or Court of law.

 

Since in the Rule the impugned sanction is under challenge and it is found that the impugned sanction has been given without lawful authority, for non-fulfilment of the condition-precedent set out in Rule 19* (4) and the alleged offence having been commit­ted prior to the promulgation of Emergency, the instant case initiated under the Emer­gency Power Rules, 2007 is illegal, without lawful authority and cannot be proceeded with further.

 

Sheikh Hasina vs Bangladesh 13 BLC 121.

 

Articles 7, 8, 26, 27, 31, 58D, 93, 94-117

 

The Non-party Care-Taker Govern­ment shall carry on routine function with aid and assistance of persons in the service of the Republic and it shall not make any policy decision. Furthermore continuation of interim Care-Taker Government for years together or unlimited period is not warranted by the framers of the Constitution. The Voluntary Disclosure of Information (Ordi­nance No. 27 of 2008) clearly a policy deci­sion, such policy decision cannot be enacted by Care-Taker Government and, as such, the enactment is viola tive to Article 58 D(l) of the Constitution. The Commission occupied the feild of the Supreme Court. The supervisory power of the Supreme Court has been encroached and disregarded and the Administration of Criminal Justice are not functioning in accor­dance with law and procedure due to inter­ference of the Truth Commission.

 

Under the Ordinance there is a scope of pick and choose of the offenders which has violated the equality clause under Article 27 of the Constitution. The impugned Ordi­nance directly violated Article 94-111-A under Part VI and Article 27, 31, 35(3)(4), Articles 58 B-E and all other Articles relating thereto. Thus basic concept of the Constitu­tion has destroyed.

 

The impugned Voluntary Disclosure of Information Ordinance, 2008 (Ordinance No.27 of 2008) published in the Bangladesh gazette extra­ordinary dated June 8, 2008 is liable to be declared to have been made without lawful authority and is of a legal effect and ultra-virus of the Constitution and all acts done or deeds or exoneration made or proceeding taken under the said Ordinance is also liable to be declared to have been done and made without lawful authority and is of no legal effect.

 

Adilur Rahman Khan vs Bangladesh 16 BLC 10.

 

Articles 10,19,26,28,29,31,32,102 & 111

 

Protection from sexual harassment and right to education and work with dignity is universally recognised as basic human rights. The common minimum requirement of these rights has received global acceptance. There­fore, the International Conventions and norms are of great significance in the formulation of the guidelines to achieve this purpose. Equality in employment can be seriously impaired when women are subjected to gender specific violence such as sexual harassment at the workplace and educational institutions.

 

In view of the inadequacy of safeguards against sexual abuse and harassment of women at workplaces and educational institutions whereby noble pledges of our Constitution made in so many Articles to build up a society free from gender discrimi­nation and characterised by gender equality, are being undermined every day in every sphere of life. This Court is inclined to issue certain directives in the form of guidelines as detailed below to be followed and observed at all workplaces and educational institutions till adequate and effective legislation is made in this field. These directives are aimed at filling up the legislative vacuum in the nature of law declared by the High Court Division under the mandate and within the meaning of Article 111 of the Constitution giving its (1) Extent (2) Aims and objectives (3) Duties of employers and authorities (4) Definition (5) Creating awareness and public opinion (6) Preventive steps (7) Disciplinary action (8) Complaints (9) Complaint Committee (10) Procedure of the Complaint Committee and (11) Punishment. The High Court Division was also pleased to give direction to all the educational institutions and work places in both public and private sectors to follow and observe strictly the above guidelines until adequate and appropriate legislation is made in this field.

 

Bangladesh National Women Lawyers Association (BNWLA) vs Government of Bangladesh 14 BLC 694.

 

Articles 11, 55(4), 56(2), 59, 60 and 102

 

None of the Ministers, Whips and other functionaries mentioned in the above notifications can be appointed in respect of any of the districts mentioned therein. They do not have any function as such, in respect of the districts, save and except their functions as Ministers for the particular departments in the context of the entire country. Similarly, the members of Parlia­ment have got no direct role or function, in respect of either development or main­tenance of law and order, in the district or in other local administrative units. As such, the petitioner, a member of Parliament, has got no function in respect of Pirojpur district. The Ministers and the members have lots of duties and functions at the national level but they cannot abdicate the functions of the Local Government bodies like Zilla Boards and other local bodies. The notification dated 12-11-2001 and dated 13-11-2001 are ultra vires to the Constitution.

 

Anwar Hossain Manju vs Government of Bangladesh 12 BLC 792.

 

Articles 22, 48(3), 55(2), 94(4), 95, 98, 102, 116 and 116APer Md Tafazzul Islam (disagreeing in part) :

 

However, as held by Joynul Abedin J, since a judge is properly identified with the Court in relation to something done in exercise of the jurisdiction of the Court and his personality remains distinct and separate from the Court and as an individual, he can maintain action if he suffers legal wrong or legal injury and on the plain language of Article 103 of the Consti­tution there is no difficulty in holding that the petitioners of Civil Petitions for Leave to Appeal Nos. 2056 and 2046 of 2008 as sitting judges have standing to maintain the leave petitions filed by them in challenging the impugned judgment of the Special bench of the High Court Division.

 

Bangladesh vs Md Idrisur Rahman 15 BLC (AD) 49.

 

Articles 22, 62(2), 76, 93,102(2)(b)(ii), 107,113 & 118

 

75% posts of the Law and Justice Wing of the Ministry of Law, Justice and Parliamentary Affairs and the post of Secretary of that Ministry are reserved for the officers belonging to the members of the judicial service and they can be appointed or transferred on deputation and can be appointed to the posts, so reserved for mem­bers of the judicial service, no members of any other service or cadre or no individual can be appointed, whether on deputation, promotion, contract or otherwise.

 

Bangladesh vs Md Aftabuddin (Retd. District and Sessions ]udge) 15 BLC (AD) 25.

 

Articles 25, 31, 32 & 102(2)(a)(ii)

 

It has not been denied in the affidavit-in-opposition that respondent No. 1 did not remove the detenu from the custody of the petitioner and that the detenu was brought to Bangladesh without her consent. The detenu was taken from the custody of his mother while he was in the UK. The law of the UK does not permit such a removal. The rule of Hizanat has not given any unfettered right to the father to remove a minor son aged about 10 years from the custody of his mother at will. By resorting to deceptive means, respondent No. 1 took the temporary custody of detenu from his mother on pretext of going to a family visit to Ireland and then brought the detenu to Bangladesh. By doing so, respondent No. 1 has taken the law in his own hands without waiting for adjudication of the custody and welfare of the child in an appropriate forum. The law of UK does not permit such removal of a child from the custody of his mother without her consent. Before adjudication of the Family Suit the detenu must be restored to his earlier custody, that is, in the custody of the petitioner. Therefore, the removal of the detenu from the custody of his mother is without lawful authority and that he is being held in the custody of the respondents in an unlawful manner.

 

Zahida Ahmed (Liza) vs Syed Nooruddin Ahmed 14 BLC 488.

 

Articles 25, 31, 32 & 102(2)(a)(ii)

 

The detenu's relationship with her parents had been increasingly tense and hostile over the years as they had subjected her to threats and acts of physical violence. The detenu has since 5-8-2008 to date been held captive against her will and under duress by respondent Nos. 1 and 2 aided by respondent No. 3. The detenu was set at liberty on 14-12-2008. The parents must remember that they are not living in the old ages, but in the twenty-first century where freedom of every human being irrespective of sex is universally recognised. The petitioner's liberty enshrined in the Constitution shall mean and include her right to make decision concerning her groom free of coercion, violence and discri­mination. The detenu was illegally detained by respondent Nos. 1 to 3 from 5-8-2008 to 14-12-2008 without any lawful authority and in an unlawful manner.

 

Dr Shipra Chaudhury vs Bangladesh 11 BLC 561.

 

Articles 26 and 31

 

A law, which excludes the necessity of hearing, will be void under Article 31 and a fortiorari an action, which must have the backing of law, in breach of fair hearing, must be void in terms of Article 26 of the Constitution. The legal position is, that when an action is void, it is a nullity and has no force in law and cannot be enforced. It not being voidable, need not be avoided by taking any available legal proceeding.

 

Razia Batter vs Azizul Huq 12 BLC 357.

 

Articles 26, 102 and 141C(1)

 

The Presi­dent in terms of Article 141C(1) is empower­ed to suspend the enforcement of any of the fundamental rights conferred by Part III during the period when a Proclamation of Emergency is in operation. It is for the President to decide the enforcement of which of the fundamental rights should be sus­pended during the operation of the Procla­mation of Emergency and this power is not liable to be circumscribed or limited by any other provisions in the Constitution inclu­ding Article 26. Once a Proclamation of Emergency has been made the security of Bangladesh or any Part thereof invests in the President's all out power to suspend the enforcement of any of the fundamental rights conferred by part III of the Constitution. This is necessary to keep up and maintain the welfare of the State. As a matter of fact, there is no scope for enquiry into the question, whether the fundamental rights the enforce­ment of which the President has suspended under Article 141C(1) has anything to do with the security of Bangladesh which is threatened whether by war or external aggression or internal disturbance.

 

Ataur Rahman vs BM Muhibiir Rahman 14 BLC (AD) 62.

 

Articles 27, 31 and 102

 

There was no allegation against the petitioners that they were turbulent in manner nor any discipli­nary measures were ever taken against them as it appears from the records. We also find no reason as to why 88 Sub-Assistant Engineers were recruited before absorbing the petitioners and without confirming their service with an order of alleged retrospective effect when similarly situated respondent Nos. 4, 5 and 6 were given such chance.

 

The petitioners being on equal footing and similarly situated with the respondent Nos. 4, 5 and 6 appear to be the victim of discrimination which is arbitrary, unfair and unreasonable.

 

Abu Taker Mondal vs Bangladesh Water Development Board 15 BLC 145.

 

 

Articles 27, 31, 40, 42 and 102

 

On perusal of section 138A of the Act as amended on 9-2-2006 and on consideration of the whole enactment, it appears that the Negotiable Instruments Act being a procedural law, there is no bar in giving its effect retrospectively and moreso, by the Act there is no difference in awarding sentence, if any, upon the accused. Furthermore, the right of appeal accrues on the date of pronounce­ment of judgment. The requirement of 50% deposit of cheque amount at the time of filing an appeal in the Court under the provisions of section 138A of the Act is not unconstitu­tional or violative to the provisions of the Constitution. Considering the matter and the cited decisions, there is no possible reason to hold that the provisions of section 138A of the Negotiable Instruments Act will not apply in those cases which were filed before the said section came into force.

 

Jahid Faisal vs Bangladesh 14 BLC 259.

 

Articles 27, 29, 31 and 102

 

Since the impugned SRO amending the Recruitment Rules, 1981 was promulgated to fulfil the governmental objective to remove undue hardship and injustice confronting the writ respondent Nos. 4-17 the same cannot be said to be discriminatory legislation and for the same reason such legislation cannot be also said to be a class legislation.

 

Ataur Rahman vs BM Muhibur Rahman 14 BLC (AD)62.

 

Articles.27, 31, 95, 98, 102, 111 & 147(2)Per Md Joynul Abedin, J (disagreeing in part) :

 

If a right or privilege of a sitting Judge is sought to be denied citing the provi­sion of Article 111 of the Constitution that will not only be contrary to rule of law but would also be contrary to constitutionalism being in violation of his fundamental rights guaranteed under Articles 27 and 31 of the Constitution. Further this would also amount to a denial of his right of access to justice which is an inviolable right secured and ensured in the Constitution and equally founded in the doctrine of due process of law.

 

Bangladesh vs Md Idrisur Rahman 15 BLC (AD) 49.

 

Articles 27, 31, 40 or 42 and 102

 

So long the enactment of depositing 50% of the decretal amount is there in the Ain which has been made for the purpose of realisation of money from the defaulters and the same is found to be an unreasonable restriction the remedy of the petitioner categorically lies in preferring appeal irrespective of annual misreading of evidence or misconception of law which can be agitated in appeal. Similarly, institution of suit and decreeing the same without complying with the provision of section 12(6) or 47(2) of the Ain 2003, as alleged are also matters to be agitated in appeal. The provision of section 41(2) of the Ain or any part of the same is not violative of Article 27, 31, 40 or 42 of the Constitution.

 

Anisur Rahman & KM Ziaul Haque vs Government of Bangladesh 12 BLC 22.

 

Articles 27, 31, 40 and 42

 

Any appli­cation is competent under section 19 if it is filed with 10% of deposit as required under the section. The provision cannot be said to be violative of fundamental right of the petitioner guaranteed by Article 27, 31, 40 and 42 of the Constitution.

 

Mohiuddin Mnh-mood vs Bangladesh 17 BLC 531.

 

Articles 27 and 28

 

Since the petitioner stands on the same footing with the Bay Fishing Corporation Limited, the benefit allowed under the said order to Bay Fishing Corporation Limited was also applicable to the petitioner and, as such, the petitioner is also entitled to the benefit of rebate allowed by the special order.

 

Bangladesh Edible Oil Ltd vs National Board of Revenue 11 BLC 35.

 

Articles 27 and 102

 

The appellants have asserted in the affidavit-in-opposition that the authority has exercised its discretion under rule 21 of the Import Policy relaxing the rule 20 thereof in respect of an import of the reconditioned car brought for personal use and 10 reconditioned cars for the use in a Government project which are above 5 years old and not for any commercial purpose as in the case of the writ petitioner. The authority concerned has classified these 2 imports for personal one separate from the commercial imports for profit and the same could not be treated as discriminatory offending the equality clause in Article 27 of the Constitu­tion.

 

Chief Controller, Import and Export vs Md Faruk Ahmed 12 BLC 44.

 

Articles 28(1), 31 and 42

 

Muslim Law of pre-emption is not a Quaranic law. It is adopted by the Cotirts on the ground of "justice, equity and good conscience". It is clear that it is, not only discriminatory and violative of Article 42(1) of the Constitution but is also opposed to the principle of justice, equity and good conscience and therefore, the Suffa as Shafi-i-Jar is void. The law of pre­emption as laid down in section 231(3) in Mullah's Principles of Mohammedan Law, i.e. right to pre-empt a sale as a Shafi-i-Jar which is right of pre-emption based on vicinage, appears to be unconstitutional and offends the provision of Article 42(1) read with Article 31 of the Constitution as it imposes an unreasonable restriction on power of alienation of property and/or acquiring property. So, the provisions of Muslim law of pre-emption, so far it relates to Shafi-i-Jar, is declared to be void as it offends Article 42(1) of the Constitution.

 

Younusco K Textiles Ltd vs Jamuna Knitting and Dyeing Ltd 11 BLC 202.

 

Articles 31, 32, 35 and 102

 

While a penalty imposed upon a prisoner under section 56 of the Prisons Act relates to an offence committed inside the prison by a prisoner. Therefore, the Additional Attorney  General has rightly submitted that sub-Article 5 of Article 35 of the Constitution is not relatable to prison offences. But at the same time it may be pointed out that Article 31 of the Constitution guarantees the right to protection of law in respect of a citizen of the country which includes the prisoners who have been kept confined even after con­viction. Therefore, Article 32 of the Constitu­tion comes in aid to the protection of the right of a citizen including the prisoners like Fazlu. It appears that bar fetters was imposed on the person of Fazlu as far back as on 17-8-1994 and it was allowed to continue upto January 1998 until specific order was passed by the High Court Division on 21-1-1998 and during this period Fazlu was never relieved of such bar fetters for a single moment, in other words, the bar fetters continued to persist on the person of Fazlu during such a long period ceaselessly.

 

From the relevant provisions of law for the purpose of imposition of bar fetters and the rules framed thereunder for the purpose, as has already been pointed out above, do never contemplate incarceration of a prisoner with bar fetters for such a period as has been done in respect of prisoner. The facts involved in this case is a glaring exemplar of gross violation of the Rules and Regulations framed for the purpose of imposition of bar fetters and prolongation thereof beyond the limit as prescribed by Rule 719 of the Jail Code which empowers the Superintendent to impose the same in fit cases, for a maximum period of 3 months continuously. But, in the instant case, it was allowed to continue ceaselessly, for a period of about 4 (four) years, in utter disregard to the provisions of law relevant for the purpose. In the instant case it is found that even in the conspicuous absence of availability of circumstances warranting imposition of bar fetters on the prisoner Fazlu, the jail autho­rity imposed the same on him and that too without assigning any reason as contempla­ted by law.

 

It is directed that the persons found responsible in the episode, as aforesaid, be brought to justice by way of an appropriate departmental proceeding against him/them, if not retired from service in the meantime.

 

Salma Sobhan vs Bangladesh 13 BLC 148.

 

Articles 31 and 102

 

In our Consti­tution as well as Indian Constitution right to protection of law has been given to any person. Person includes juristic person. Hence, it cannot be accepted that as the petitioners were not citizen of the country the writ petition is not maintainable.

 

Elias Brothers (Pvt) Limited vs Bangladesh 16 BLC 327.

 

Articles 31 and 102(2)(a)(ii)

 

Having regard to the facts and circumstance of the case, it is clear that the order of dismissal is ex facie illegal because of the fact that when the order of dismissal was issued, there existed no order of conviction of the petitioner and, as such, it affected the rights or interest of the petitioner and thus the petitioner was treated otherwise than in accordance with law in violation of the guarantee provided by Article 31 and, as such, the same is liable to be struck down.

 

Shamsur Rahman vs Bangla­desh 15 BLC 482.

 

Articles 31 and 102(2)(a)(i)(ii)

 

When the provision of Bidhi 5(4) of the Shammpat-tir Bazar Mullaya Nirdharan Bidhimala, 2002 was not there, a deed of sale was valued on the value as mentioned in the decree and the amount mentioned in the decree used to be the amount mentioned in the contract for the enforcement of which the decree was passed. Now that the aforesaid rule requires payment on the market value on the date of presenta­tion of the deed of sale even though the decree mentioned a lower amount, it may create, as in the present case, serious hard­ship. Thus, if the aforesaid rule is unreason­ably harsh, it will be void on account of it being unreasonable and harsh. It seems that the Rules have been framed to avoid under valuation. In the case of contested decree of specific performance, the question of under valuation cannot arise.

 

M Amvar Hossain vs Government of Bangladesh 11 BLC 712.

 

Article 33

 

Due to last moment appoint­ment of the State defence lawyer after closure of examination-in-chief of PW 1, the con­demned prisoner Md Abdul Gofur could not get proper legal assistance in the present case which affected seriously the inherent purpose of the Article 33 of the Constitution read with section 340 of the Code of Criminal Procedure and also relevant provisions of Legal Remembrancer's Manual 1960.

 

State vs Md Abdul Gofur 12 BLC 8.

 

Article 35

 

In the instant facts of the case wherein proceeding was pending in the nor­mal Criminal Court before it was transferred to the Special Divisional Magistrate, Sadar, Noakhali and upon charge-sheet the case was triable by the Sessions Judge, Noakhali and in due process was waiting to be tried as such but for no fault of the appellant the same was transferred to the Court of Special Martial Law, Dhaka at the behest of the complainant respondent No. 4 and was tried there illegally convicting the appellant and two others under section 302 of the Penal Code and sen­tenced to suffer imprisonment for life, and the appellant was released from jail custody on amnesty after suffering the sentence in accordance with law. But upon an application under Article 102 of the Constitution, the said conviction and sentence was quashed as coram-non-judice by the High Court Division.

 

Mohammad Ullah vs Sessions Judge 13 BLC (AD) 44.

 

Articles 36 and 102

 

The action of refusing to allow the respondent No.l to leave the country is arbitrary and without justification. No reasons (either oral or written) were provided by the respondent No.4, the Immigration Officer or any other Officer at the Zia International Airport as to why the respondent No.l was not permitted to leave Bangladesh.

 

Bangladesh vs Allama Delawar Hossain Sayedee 16 BLC (AD) 1.

 

Article 40

 

Article 40 of the Constitu­tion empowers Parliament to prescribe qualifications for particular professions and occupations. Though no restriction is put on the power of prescribing qualifications, all State institutions are required to act essen­tially in the interest of the public and pres­cription of qualifications for a particular profession or occupation must be in the public interest. Thus such a prescription must have a reasonable nexus with efficiently in such profession or occupation and other public interest. Otherwise such a prescription will be arbitrary and will amount to imper­missible infringement of the freedom of occupation and business.

 

AKM Fazlul Karim vs Banglades 17 BLC 745.

 

Articles 40 and 102

 

As the matter is related with the interpretation of violation of principle of natural justice and different Articles of the Constitution in particular Article 40, this writ petition is maintainable even without exhausting the provision of appeal envisaged under rule 22 of the Customs Agent Licensing Rules, 1986.

 

Saint Mnrtin Commodities Ltd vs Licensing Authority, Customs House 16 BLC 49.

 

Articles 41 and 102(1)(2)

 

The enquiry committee had found that the audited accounts had not been kept properly and some money received as donation from different organisations had not been included in the books of account of petitioner's organi­sation and, in such circumstances, the regula­ting authority has not only power to inter­vene as custodian but also has a duty to protect the interest of the community for which the organisation itself has been set up. The Registration Authority on perusal of the enquiry report had sufficient grounds to be satisfied that intervention was necessary and, as such, has acted within its powers to pass the impugned order of suspending the Exe­cutive Committee of Bangladesh Bouddha Kristi Prachar Sangha under section 9(1) of the Voluntary Social Welfare Agencies (Registration and Control) Ordinance, 1961 in order to establish proper administration by removing irregularities as per direction of the Ministry of Social Welfare.

 

Shuddhananda Mahathero vs Bangladesh 11 BLC 572.

 

Articles 44 and 102

 

The writ petition involves interpretations of sections 4, 6 and 6A of the Administrative Tribunal Act, 1980 and, Rules 11 and 26 of the Government Servants (Discipline and Appeal) Rules, 1985. Thus we further find merits in the submis­sions made on behalf of the petitioner on the question of maintainability of the Rule Nisi. Therefore, we hold that the Rule Nisi is main­tainable. The respondents are further directed to reinstate the petitioner in his service in compliance with the judgment and order dated 11-9-2002 passed by the Admi­nistrative Tribunal, Barisal in Administrative Tribunal Case No. 19 of 2002 and to pay him all arrears of his salary and allowances within 30 (thirty) days from the date of receipt of a copy of this judgment.

 

Parimal Chandra Sil vs Bangladesh 16 BLC 588.

 

Articles 47(2) and 102

 

The petitioner has been claiming promotion since 2001 according to the Circular No. 22 of 1979, which being made in exercise of the power under Article 82(2)(e) of the Bangladesh Bank Order, is a law protected under Article 47(2) of the Constitution, there can be no waiver against the same. The respondent No. 2 gave an undertaking that if the petitioner would succeed in writ petition he would given promotion as per the order of this Court. Now the petitioner has succeeded in this writ petition, respondent No. 2 is rather barred by promissory estoppel from resiling from its undertaking.

 

Sukamal Sinha Choudhury vs Government of Bangladesh 16 BLC 673.

 

Articles 47(2) and 102

 

The impugned Circular No.10 of 2005 insofar as it relates to its retrospective effect is liable to be declared to have been made not under any lawful authority of the BBO and void and as a whole not applicable to the petitioner's case. As the petitioner has been eligible for promotion since 2001 to the post of GM and in the mean­time he has also performed functions of GM in the absence of concerned GM, he is entitled to seniority over his juniors and all financial benifits from the date he was first superseded by his junior.

 

Sukamal Sinha Choudhury vs Government of Bangladesh 16 BLC 673.

 

Articles 48(3), 55(2), 95, 98 and 102 Per MM Ruhul Amin C] (agreeing) :

 

As regard the oath it is to be mentioned here that under Article 98 of the Constitution a Judge is appointed for a fixed period of 2 years as an additional Judge and he takes oath as such. So, this oath cannot extend beyond the period of 2 years. But under Article 95 a judge is appointed without mentioning any period and he takes oath accordingly. This oath under Article 95 of the Constitution in common parlance is known as confirmatory oath. So, the two oaths are distinct and separate for all purposes.

 

Bangladesh vs Md Idrisur Rahman 15 BLC (AD) 49.

 

Articles 48(3), 95, 98 & 102Per Md Abdul Matin, ] (delivering the main judgment):

 

Each Judge in the High Court Division exercises jurisdiction on behalf of the High Court Division which is an unit of this Court having co-ordinate jurisdiction and one Judge or group of Judges cannot challenge the judgment passed by another Judge or Bench of the Judges as that will amount to challenging their own judgment. As to the legitimate expectation of the Additional Judges it is held that they only have the right to be considered for appointment under Article 95(1) of the Constitution.

 

Bangladesh vs Md Idrisitr Rahman 15 BLC (AD) 49.

 

Articles 48(3), 95(1)(2), 97 & 102(l)(2)(a)(i)

 

In the case of appointment of Judges to the Supreme Court, the President is obliged to act in accordance with the advice of the Prime Minister, but in the case of appoint­ment of the Chief Justice there is no such obligation and the President alone has the authority to appoint the Chief Justice.

 

Hassan MS Azim vs Bangladesh 16 BLC 800.

 

Article 49

 

The power of the President to commute any sentence is not subject to any constitutional or judicial restraints except that it cannot be used to enhance the sen­tence.

 

Bangladesh vs Kazi Shaziruddin Ahmed 11 BLC (AD) 231.

 

Articles 58B, 102, 118, 120 and 123 Per Mr Md Abdur Rashid / (delivering the main judgment) :

 

Question is, whether the Election Commission has got any discretion under Article 123 of the Constitution in not holding the election of members of Parliament within the period of ninety days of dissolution of Parliament. Language of Article 123 is so plain and simple that if read without any eye fixed at or an intention to accommodate the present situation created for failure of the Election Commission in holding the election within the time, there is no reason to find the Election Commission has got any discretion in not holding the election of members of Parliament within said period of ninety days after dissolution of the Parliament.

 

Masood R Sobhan vs Election Commission 13 BLC 749

 

Articles 65, 79 and 102

 

In section 11 of the Act of 1994, it has been stipulated that the service conditions of the employees are to be determined by the existing laws for the employees of the Republic and the seniority is one of the service conditions and, as such, the framing of such Regulations by respon­dent No. 2 exercising the power conferred under section 21 of the Act 8 of 1994 is a gross violation of the provisions of section 11 of the said Act. Furthermore, while exercising the sub-ordinate legislation, no Rules or by-laws can be framed giving retrospective effect and, in the instant case, retrospective effect has been given in the impugned notification that relates to seniority. Considering facts and circumstances discussed hereinabove, the provisions of Articles 65, 79 of the Constitu­tion of the People's Republic of Bangladesh, the provision of Act 8 of 1994 as well as the Surplus Public Servant Ordinance, 1985 and the decisions as referred to, the impugned amendment of Regulation 7 of the Recruit­ment Regulations, 1994, the Padonnati Jeshthata Nitimala, 2001 and the absorption of the respondent Nos. 12 to 32 have been done without lawful authority and are declared illegal and are of no legal effect.

 

Ruhul Amin (Md) vs Bangladesh 11 BLC 599.

 

Articles 65(3) and 102

 

The Act providing procedure for holding the election to women reserved seats, is an ordinary statute enacted following the legislative pro­cedure in order to materialise the provision of Article 65(2) of the Constitution as contem­plated therein, whereas amendment of the Constitution has been done in the case of Article 65(3) following the prescribed Consti­tutional procedure substituting utmost or similar provision as aforesaid which has been in existence since its commencement and does not alter the basic structure and essen­tial feature of the Constitution and became part of the Constitution. The validity of the impugned Act providing modality, methodo­logies and procedure for the election to the women reserved seats in keeping with the mandate, purpose and object of the amend­ment to the Constitution in Article 65(3), if judged by the touchstone of the Constitution, it will be seen that the same is not inconsis­tent or repugnant or ultra vires the Constitu­tion or offending any law.

 

Farida Akhter vs Bangladesh represented by the Secretary, Cabinet Division 11 BLC (AD) 156.

 

Articles 95, 98, 102 and 103Per Md Fazlul Karim J (disagreeing in part) :

 

Such a person upon declaration by the High Court Division is eligible for appointment as a per­manent Judge i.e. superseding 29 permanent Judges who earlier took oath upon being confirmed while the writ-petitioners were not confirmed. Accordingly, the said sitting 29 confirmed Judges who are holding the constitutional post, had reason to be aggrieved to secure their individual position as a Judge and are entitled to maintain an appeal in order to avoid infliction of any constitutional wrong affecting their indivi­dual legal entity, though unit of the entire body of Judges of the said Division and accordingly have standing to maintain the leave petition under Article 103 of the Constitution.

 

Bangladesh vs Md Idrisur Rahman 15 BLC (AD) 49.

 

Articles 96,102 and 133 to 141

 

From the provisions of the Anti-Corruption Act of 2004 it appears that the government does not have any control in the process of the selection, rather, the President is bound to appoint from the selected condidates as submitted by the Selection Committee following the provi­sions of section 7 of the Anti-Corruption Act and the government is not empowered to remove the Chairman or other members at its sweet will in view of section 10(3) of the Anti-Corruption Act. There is absolutely no scope to hold that the office of the respondent No. 1 is in the service of the Republic.

 

Aminul Hague Held (Md) vs Justice Sultan Hossain Khan 11 BLC 339.

 

Article 102

 

On the application of the writ-petitioner, the High Court Division issued a Rule and stayed operation of the impugned orders. It should be noted that an order once takes effect, it cannot be stayed. If an order of suspension takes effect, if cannot be stayed till the same is finally disposed of on merit.

 

Bangladesh vs Sarwar Kamal 16 BLC (AD) 8.

 

Article 102

 

It appears that in view of the decision of the Review Panel and the regulation 31(12) of Public Procurement Rules there is no scope to accept the bid in compliance with any direction to execute contract in the matter with the respondents as directed by the High Court Division. The impugned Judgment and Order by the High Court Division making the Rules absolute are set-aside.

 

Chittagong Water Supply & Sewerage Authority (CWASA) vs EPI-BFEW Consortium 16 BLC (AD) 9.

 

Article 102

 

From the statements in the writ petitions it is found that the writ peti­tioners were eligible for regularization to their respective posts as per Rule 4 of Rules, 1981 on or before 10th May, 1998, prior to the promulgation of Rules of 2000. The writ petitioners regularization will be decided as per rule 4, and their seniority and promotion will be governed by Rule 8 of the Rules, 1981.

 

Government of Bangladesh vs Kamrun Nahar 16 BLC (AD) 18.

 

Article 102

 

The expression 'building has been defined in section 2(a) of the Ordi­nance, which means "any residential or other building or structure of any kind in an urban area and includes the land adjunct thereto, and the Court yard, tank, place of worship and private burial or cremation ground appertaining to such building". From the above definition there is no gainsaying that building includes any structure in the urban area and any land adjunct thereto. There is no dispute that there are structures on the disputed land as has been admitted by the writ petitioner in the writ petition. In view of this admitted position, there is no merit in the contention of the learned Advocate for the respondent. Over and above, admittedly the property has not been enlisted in the aban­doned property list in accordance with section 5 of the Ordinance.

 

Jahangir Alam (Md) vs Md. Shamsur Rahman Sarder 16 BLC (AD) 22.

 

Article 102

 

In the present case, the space let out is outside the port protected area and it falls within the regulation 163(2) which admittedly do not contain any sub-regulation as to the rate. It appears that Regulation 163(2) does not have any sub-regulations from which it could be enforced that the rent of open space shall be half of the rate.

 

Chittagong Container Transportation Company vs Bangladesh 16 BLC (AD) 37.

 

Article 102

 

The rule is that the party will not be allowed to go behind the facts admitted in writing. If a person has by his conduct permitted the other party to believe that the agreement was other than it is embodied in the document, and has caused him to act upon that belief, he cannot fall back upon section 92 of the Evidence Act and thereby escape the consequence of his own action.

 

Privatization Commission vs Golam Mostafa 16 BLC (AD) 67.

 

Article 102

 

As the alleged contract does not fulfill any one of the requirements to make it a statutory contract entered into by the Government in the capacity as a sovereign, the claimed relief is not enteraninable when disputed question of fact cannot be dicided in the writ jurisdiction.

 

Superinten­dent Engineer, RHD, Sylhet vs Md Eunus and Brothers (Pvt) Ltd 16 BLC (AD) 73.

 

Article 102

 

The imposition of major penalty upon the respondent No. 1 under Rule "8 without affording him any opportunity to show cause as to why the said penalty should not be inflicted upon him \ instead of comparatively lower penalty, has certainly caused prejudice to the respon-    i( dent No. 1 resulting in a miscarriage of justice.

 

Rural Electrification Board vs Md Awlad Hossain 16 BLC (AD) 111.

 

Article   102

 

The  amount  of rents realized excluding the amount spent for the maintenance  of the  godowns which are exclusively serious disputed questions of fact cannot  be   decided   in  writ  jurisdiction.

 

Bangladesh vs Helal Jute Press Ltd 16 BLC (Aof 101.

 

Article 102

 

Writ Petitioners having not enclosed any order of the Revenue Officer pursuant to the filing of their application for mutation and only stated that I they prayed to the Assistant Commissioner for mutation of their names who expressed his inability to mutate their names. The High Court Division in no way is sitting on appeal from the order of the Revenue Officer. Since no action or order contrary to law has yet been taken by the Revenue Officer, the writ petition in the nature of mandamus is a premature one.

 

Government of Bangladesh vs M Anwar Hossain 16 BLC (AD) 155.

 

Article 102

 

Tenancy Rules of 1954 show that the mutation of the record-of-right is not a mere routine work rather such mutation requires examination of the records which may take time. The writ petitioners failed to make out any case that the alter­native remedy available to them is not efficacious. The High Court Division should not have exercised its discretion before a decision is given by the revenue-officer. A direction was given to the concerned revenue-officer to dispose of the mutation matter within six months from the date of receipt of the judgment. The determination of disputed facts require assessment of evidence.

 

Government of Bangladesh vs M 'Anwar Hossain 16 BLC (AD) 155.

 

Article 102

 

The provision of addition of parties under Order I, rule 10(2) is an independent provision. One can be made party or one can be struck off from the pleading if so required. The law enjoins that a person who is necessary for the proper disposal of the case should be made a party as it has been in the present case. So where is the%rong? If we analyze the chain of facts we cannot say that under the grab of addition of party there is a substitution, which Mr Hoque contends to be a nullity and not sustainable under law.

 

Ferdous Amin Siam vs Artha Rin Adalal 17 BLC 195.

640

Contempt of Court Act, 1926

Citation: 12 BLC 357, 13 BLC 339, 11 BLC (AD) 1

Case Year: 1926

Subject: Contempt of Court Act

Delivery Date: 2018-06-25

Contempt of Court Act

[XII of 1926]

 

Section 2

 

It appears that if one disobeys an order of the Court one does it at one's own peril and at an ultimate analysis if it is found that the order is void ab initio the violation of the same will not create any liability whereas the position will be reverse in case of violation of a voidable order .

 

Razia Satter vs Azizul Huq 12 BLC 357.

 

Section 2

 

An order of the Court can also be 'void' or Voidable' and that aspect has nicely been described by Lord Denning MR as he usually does on any legal issue. The Pakistan Supreme Court has used these two expressions in Dr MO Gani's case [18 DLR (SC) 463] in this context as admittedly sometimes Courts pass 'void' order which is absolutely illegal and without jurisdiction and very frequently also pass 'voidable' orders which remain in full force until and unless it is vacated, modified by the Court itself or reversed by the appellate Court. The Pakistan Supreme Court correctly used these expressions in explaining the legal position in the present context.

 

In the instant case, the order complained of is void ab initio on two counts, namely (1) for violation of the principles of audi alteram partem which is deep rooted in our juris­diction and has got judicial recognition in Zakir Ahmed's Case [16 DLR (SC) 722] and thereafter consistently followed by both the Divisions of this Court; The impugned order also suffers from patent illegality in view of the fact that the Requisition and Acquisition of Immovable Property Ordinance, 1982 made provisions for challenging legality of the requisition and acquisition order and for disputing the qxiantum of compensation and the jurisdiction of the Court is ousted.

 

Razia Satter vs Azizul Huq 12 BLC 357.

 

Section 2

 

It appears that the statement made in paragraph Nos. 1 and 2 of the affida­vit are nothing but a blatant lie and concocted story created to strengthen the case. Thus, there is substance in the submission of Mr Mahbubey Alam that, that affidavit is nothing but an after-thought and is created for the purpose of the present case. In the contempt petition also this fact is not stated. There is no earthly reason why such an important and material fact will be omitted by the petitioner in drawing up her applica­tion for contempt. Therefore, this affidavit does not, in fact, support the case of the petitioner, rather it demolishes her case. For the reasons stated above no credence can be put on the statement of fact made by the deponent in paragraph No.3 of the said affidavit.

 

Razia Satter vs Azizul Huq 12 BLC 357.

 

Section 2

 

The decree obtained by the petitioner is in the nature of declaration that the Order dated 28-4-1980, cancelling the allotment made in favour of Moheruddin Chowdhury, was illegal. No doubt this declaration is binding upon RAJUK and all concerned in respect of Plot Nos. 20 and 20A. But the decree did not spell out any direction. In this case, the failure on the part of the officials of RAJUK to honour the decree is no doubt reprehensible but in the absence of specific direction, does not constitute contempt of Court.

 

Mamtaz Hasan Chowdhury vs KM Haroon 14 BLC 1

 

Section 3

 

From the heaps of corres­pondences available with the record, nowhere it is found any earnest desire or honest move or bonafide intention on the part of the contemner Nos. 2 and 5 to implement the direction of this Court. On the contrary, it appears that their moves tend towards hindering the directions not to implement the order of this Court. Further-more, the contemners have behaved in a most reprehensible manner by showing utter defiance and disrespect to the order dated 13-12-2005 of this Court passed in Writ Petition No. 8860 of 2005 and continued to do so in spite of filing of this contempt petition. The statements made in their affidavits-in-oppo-sition justifying their contemptuous conduct are contemptuous.

 

Kazi AKM Shahjahan vs Secondary & Higher Secondary, Education Board 13 BLC 339.

 

Section 3

 

It appears from the heaps of correspondence attached to the appeal nowhere any earnest desire or honest move or bonafide intention on the part of the contemner-appellant either to hold or to co­operate in the matter of holding the AGMs. On the contrary, it appears that their moves tend towards hindering the directions not to implement the orders of the Court. The conduct of the contemners can only cause despair and dismay which are never expected of highly placed company functionaries exposing themselves utterly partisan towards certain interested quarter in the Bank who are opposed to hold any AGM as ordered by the Court.

 

Hamidul Haaue, MD, UCBL vs Akhteruzzaman Chowdhury (Criminal) 11 BLC (AD) 1.

641

Contract Act, 1872

Citation: 12 BLC 357, 12 BLC (AD) 156, 15 BLC 600, 15 BLC 787, 11 BLC 398, 11 BLC (AD) 124,

Case Year: 1872

Subject: Contract

Delivery Date: 2018-06-25

Contract Act, 1872

[IX of 1872]

 

Section 2(g)

 

The correct legal position has been stated by Mr Rafique-ul-Huq and Mr Mahmudul Islam. In respect of the contention of Mr Huq that the use of the word "void" or "voidable" is applicable to contract and they should not be used in other context is difficult to accept. It is true that the said expressions are frequently used in respect of contract. Bu t nevertheless, an order of the Court can also be Void' or Voidable.

 

Razia Satter vs Azizul Huq 12 BLC 357.

 

Sections 4, 5 & 73

 

The offer of the plaintiff was accepted by the defendant seller by its letter of acceptance, Exhibit-2(a). Con­sequently, there was a concluded contract between the plaintiff buyer and the defen­dant seller as regards sale of the suit property. But the plaintiff buyer failed to pay the aforesaid sum even within the extended time and thus committed breach of the contract. The defendant seller was therefore entitled to forfeit and it did forfeit the earnest money for breach of the above terms and conditions of the contract.

 

Mesbahuddin Ahmed vs James Finlay 12 BLC (AD) 156.

 

Sections 4, 5 & 21

 

There was a con­tract between the parties. As per contract the plaintiff deposited to the defendant's bank and the defendant being fully satisfied has given the work order and delivery order of the goods in favour of the plaintiff. The defendant suddenly wanted to retract from his commitment saying that the work order and delivery order has been given in violation of the Store Manual. The reason for retraction from the contract by the defendant was not assigned to the plaintiff which defeats the principle of natural justice.

 

Bangladesh Karma Sangsthan Sangstha vs Power Development Board 15 BLC 600.

 

Section 8

 

On an analysis of the cited decisions, it appears that in a suit for specific performance of contract the primary question before the Court is whether the plaintiff has been able to prove the genuineness of the agreement by producing cogent, reliable and independent evidence. It also appears that the expert's opinion is not conclusive evidence but expert's opinion enables the Court to come to a satisfactory conclusion, though the said opinion is not binding upon the Court

 

Anwara Khatun vs Tofjal Huq 15 BLC 787.

 

Section 10

 

It appears that the plaintiff-opposite-party has totally failed to prove that oral contract was made between the plaintiff and the defendant No. 1 and earnest money of Taka 80,000 was paid out of Taka 1,20,000 on the basis of oral contract. Moreover, the evaporate and will become a hollow word of law. Equity must prevail. Therefore, justice and equity demands that if the decree is affirmed it should be followed by awarding of interest on the decretal amount.

 

Bangladesh Water Development Board vs Titas Prokaushali ltd 11 BLC 398.

 

Sections 73 and 74

 

In the instant case the umpire rightly awarded compensation to militate the loss suffered by the contractor and the contractor is entitled to it in the facts and circumstances of the case. The source of fund is absolutely irrelevant so far it relates to the present issue and there is no substance or material on record to classify the contract other that a contract as known in the Contract Act within the meaning of section 2 of the said Act. So, this disposes the contention so far it relates to the award of compensation by the Umpire and upholding the same by the trial Court and in view of the materials and evidence on record and discussions made aforesaid the awarding of compensation made by the Umpire does not amount to jurisdictional error in the instant case.

 

Bangladesh Water Development Board vs Titas Prokaushali Ltd 11 BLC 398.

 

Section 124

 

The High Court Division held that whatever might be the considera­tion of the defendant in delivering the disputed consignment to the buyer con­signee, it must be done at its own risk and peril and thus the action of the defendant No. 1, carrier could not be absolved from its responsibility to the consignor. Accordingly, the appeal is dismissed affirming the judgment and decree of the trial Court in Money Suit No. 3 of 1992 decreeing the suit.

 

Nippon Liner System vs Mahi Fish Processing Ltd 11 BLC (AD) 124.

642

Court-fees Act, 1870

Citation: 15 BLC 753, 13 BLC (AD) 40

Case Year: 1870

Subject: Court-fees

Delivery Date: 2018-06-27

Court-fees Act, 1870

[VII of 1870]

 

Section 7-IV—The petitioner.

 

It appears from the record that the trial Court being ignorant of municipal law fixed value of the suit at Taka 80,000 and asked the plaintiff to deposit advoluram Court-fees which the plaintiff being a lame woman could not deposit and the suit was dismissed for default for non payment of the Court-fees. This observation of the trial Court is wrong for which the concerned Assistant Judge must be alert of his ignorance of law and wrongly passed judgment against law. As very junior Judge I do not like to ask the concerned authority to take proper action of such illegality. The impugned order is wrong and for ensuring justice it should be set-aside. The rule has merit.

 

Zohora Khatun vs Abdul Hamid Sheikh 15 BLC 753.

 

Section 8(c)

 

The view taken by the Appellate Division is that the trial Court shall be at liberty to consider the matter of valuation of the suit property at the time of trial of the suit and shall pass necessary orders as deemed fit according to law as to payment of Court fees, if any, by the plaintiff.

 

Saimuddin vs Amjad Ah 13 BLC (AD) 40.

643

Court of Wards Act, 1879

Citation: 15 BLC (AD) 115

Case Year: 1879

Subject: Court of Wards

Delivery Date: 2018-06-27

Court of Wards Act, 1879

[IX of 1879]

 

Sections 20 & 39

 

On perusal of the Court of Wards Act, 1879, it appears that the Bhawal Raj Court of Wards Estate was created under the said Act and the Manage­ment and Guardianship of said Wards is to be managed by the manager appointed under section 20 of the said Act and section 39 of the Court of Wards Act, 1879 provides that every manager appointed by the Court shall have power to manage all property which may be committed to his charge, to collect the rents of the land entrusted to him, as well as all other money due to the ward, and to grant receipts, therefore; and may, under the orders of the Court, grant or reduce such leases and farm as may be necessary for the good manage­ment of the property.

 

Bhawal Raj Court of Wards Estate vs Rasheda Begum 15 BLC (AD) 115.

644

Criminal Law Amendment Act, 1958

Citation: 15 BLC (AD) 108, 13 BLC 657

Case Year: 1958

Subject: Criminal Law Amendment

Delivery Date: 2018-06-27

Criminal Law Amendment Act, 1958

[XL of 1958]

 

Section 6(5)

 

Since by section 28(2) requirement of sanction under section 6(5) of Criminal Amendment Act, 1958 was done away with case can proceed now without any sanction in accordance with law and therefore section 32(2) of Anti-Corruption Commission Act, 2004 has no manner of application in the instant case.

 

Mostafa Kamal vs Salahuddin Ahmad 15 BLC (AD) 108

 

Section 9

 

It appears that respondent No. 4 without making payment of fine of Taka 5,48,70,8000 served imprisonment for more than 3 months and then deposited Taka 2,74,35,400 which is half of the amount of fine and that he was released under section 69 of the Penal Code by order dated 28-2-2001 passed by the learned Special Judge.

 

provisions of section 5(2) of the Act of 1947 read with section 9 of the Criminal Law Amendment Act, 1958 conveys the message that any public servant who com­mits criminal misconduct shall be punished with imprisonment for a term which may extend to 7 years or with fine or with both and it contains certain limitation to the effect, that whether sentence of imprison-ment is imposed or not, the Special Judge shall impose a sentence of fine which shall not be less than the gain derived by the accused on account of the commission of the offence.

 

In the instant case, the criminal mis­conduct committed by the accused-petitioner by misappropriating public fund for which fine has been imposed in the nature of a financial punishment as distinguished from physical punishment which is a special reason within the meaning of the proviso to section 386(l)(b) of the CrPC and accordingly, it must be paid by him under all normal circumstances.

 

The payment of fine by others and not by the accused himself results in the avoidance of the infliction of the penalty i.e. financial punishment, which he ought to suffer for his crime. The practice of allowing others to publicly raise money for the payment of fines imposed on a convict will encourage violation of the law as the convict, in such instances, will not be visited by the full vigour of the punishment.

 

Abdul Mannan Khan vs Bangladesh 13 BLC 657.

645

Criminal Trial

Citation: 13 BLC 67, 23 BLC 833, 13 BLC 894

Subject: Criminal Trial

Delivery Date: 2018-06-27

Criminal Trial

 

It is contended on behalf of the learned State Defence Counsel that the eye-witnesses testified that the condemned prisoner Moinuddin fired one gunshot at the chest of deceased Abdul Motlib but the post-mortem report does not corroborate the same, inasmuch as post-mortem report shows 6 injuries were found on the person of the deceased victim Abdul Motlib. On this point, to our common knowledge, a cartridge of gun contained so many small bullets and consequently, for one gunshot the deceased victim Abdul Motlib might have sustained number of injures on his person and, as such, it is not possible to see eye to eye to such submission made on behalf of the condem­ned prisoner.

 

Moinuddin vs State (Criminal) 13 BLC 67

 

—Doctor found 3 of the injuries are fatal. Since 3 of the injuries are fatal, there are unexplained injuries on the person of deceased as due to movement of the body in death pain, there may be nominal scar mark but no fatal injury could be made.

 

—From the aforesaid consideration of the prosecution materials, it is clear that prosecu tion failed to prove the place, manner and time of occurrence.

 

Alkas vs State (Criminal) 23 BLC 833.

 

 

—When eye-witnesses contradict as to manner, place and time of occurrence then a clear case of benefit of doubt is well established on the prosecution case whereupon no conviction can be awarded.

 

Nazir Hossain vs Zitbaed Md Adel (Criminal) BLC 849.

 

—The prosecution case is that the accused Abdul Aziz is the "Dharma Bhai" of the father of the complainant and the victim called him "Mamasasur". It is also the case of the prosecution that the accused Abdul Aziz asked the victim Shaneka to allow accused Mostafa to rape her. How it is possible on the part of a "Mamasasur" to give such bad proposal to the victim. It is also impracticable on the part of a "Mamasasur" to allow his brother-in-law to rape the victim who is like his daughter. Moreover, it is alleged that the occurrence took place at 1-00 PM and allegation of rape cannot be accepted to be true in such broad day light. Moreover, there is no evidence that the victim Shaneka raised any scream while she was taken away to her bedroom for raping her which is unnatural. From all these facts and circumstances of this case, it appears that the conviction of the appellant suffers from an inherent improbability and also an infirmity of a serious nature.

 

Mostafa alias Masta vs State (Criminal) 13 BLC 894.

646

Customs Act, 1969

Citation: 11 BLC (AD) 233, 13 BLC 883, 11 BLC 35, 15 BLC 444, 15 BLC 284, 16 BLC 370, 16 BLC 692, 11 BLC 303, 11 BLC 349, 17 BLC 551, 15 BLC 710, 16 BLC 256, 16 BLC 359, 16 BLC 6, 11 BLC 194, 13 BLC 457, 17 BLC 582, 14 BLC 352, 17 BLC 597, 11 BLC 630, 11 BLC 83, 1

Case Year: 1969

Subject: Customs Act

Delivery Date: 2018-06-27

Customs Act, 1969

[IV of 1969]

 

Sections 2(qq) and 25A

 

Keeping in mind the service rendered by the PSI Agency as in section 25A of the Customs Act and in the Contract document and the services mentioned it is seen that since the category of services mentioned and the services which the PSI Agency were required to render in the light of the agreement entered into by the Government and the PSI Agency as well as per provision of section 25A of the Customs Act the services of the PSI Agency is vatable.

 

NBR, Chairman vs Intertek Testing Services International Ltd 11 BLC (AD) 233.

 

Sections 18, 25, 25A and 25B

 

So far the fact of the present case is concerned, respondent No. 5, the PSI agent acted as required under the LC issued on 22-4-05 and furnished its certificate on 26-8-2005, as such, the contention of the learned Advocate for the petitioner that it acted beyond its authority has got no substance. Rather, it is apparent that the PSI agent acted within its authority in making its pre-shipment inspection in respect of the imported con­signment of goods.

 

Nurul Islam vs National Board of Revenue 13 BLC 883.

 

Section 21(b)

 

It appears that since the petitioner fulfilled all the preconditions of the special order dated 30-11-1999 issued by the National Board of Revenue (NBR) regarding entitlement to rebate of 40% upon the 15% customs duty for the importation of the crude palm oil there is no hesitation to hold that the petitioner was entitled to the benefit of the said special order.

 

Bangladesh Edible Oil Ltd vs National Board of Revenue 11 BLC 35.

 

Section 25

 

It is settled that the customs duty should be levied on the basis of the duty which was in existence at the presentation of the Bill of Entry and since the petitioner submitted his ex-bond Bills of entry on 3-7-2007 and on that day customs duty was 0%, the decision of the respondent customs authority was illegal and the same should be declared to have been passed without lawful authority and is of no legal ffect.

 

Sabnam Vegetable. OH Industries Ltd vs Commissioner of Customs (Import) 15 BLC 444.

 

Sections 25 & 25A

 

In the case in our hands, SRO No.215 was issued on 12-12-95 taking Caustic Soda and Soda Ash out of the purview of SRO No.316 dated 3-11-94. Knowing fully well of such change, the importer opened letter of credit on 18-12-97; 16-4-98; 18-12-97 and 16-4-98 respectively in the aforesaid writ petitions. In view of endorse-ment by the Appellate Division to the earlier decision in Nasiruddin Ahmed, decision of this Division in Mohammad Zakir was not the correct statement of law. Now, none else but the Bar should take the responsibility for this Division to be trapped in to find the wrong end of law in the later case of Mohammad Zakir. We could not help but to take the pain to make the record straight in the light of the decision of the Appellate Division on the constitutionality of SRO No.215 dated 12-12-95. For the aforesaid reasons, there is however no escape from the conclusion that the assessments on the basis of the tariff value by the customs authority of duty and other charges of the imported goods, namely, Caustic Soda and Soda Ash must be held to be arbitrary and cannot be sustained in law.

 

Llricon Trading vs Commis­sioner of Customs 15 BLC 284.

 

Section 25(3)

 

From the records it appear that the petitioner by submitting an application to the respondent declared its value at the rate of US$ 28 per metric ton and also declared that the.petitioner is bound to make payment at the said rate as stated in the Writ Petition. The petitioner with a view to avoid further complication and incurring loss was compelled to make payment as per demand made by the respondents. Since the mandatory requirement as provided in section 25(3) of the Customs Act, 1969 has been violated by the respondent in Assessing excess value than that of the declared value the Rule was made absolute.

 

Shah Cement Industries Ltd vs Commissioner of Customs 16 BLC 370.

 

Sections 32(2) and 32(3)

 

Since the demand was not preceded by prior show cause notice as provided by section 32(2) and 32(3) of the Customs Act, such demand cannot be said to have been made with lawful authority,

 

Sk Akijuddin Ltd vs National Board of Revenue 16 BLC 692.

 

Section 32(2)

 

Two uncontroverted factual statements of the petitioner estab­lished beyond doubt that no landing charge and/or customs duties on insurance policy can be levied in the instant case. The demand is evidenced by Annexure C is a demand made under sub-section (2) of section 32 of the Customs Act. The law is that before issuing any such notice a show cause has to be issued asking the assessee to explain why the omitted portion of the duty will not be realised from him. Is a demand made without giving any opportunity to the petitioner to explain his position. The demand as evidenced by Annexure A to the application lacks sanction of law and issued illegally and without jurisdiction which does not stand the scrutiny of law liable to be struck down as an act malafide and without jurisdiction.

 

Diamond Steel Products Co (Pvt) Ltd vs Commissioner of Customs 11 BLC 303.

 

Section 32(2)(5)

 

The demands having been made beyond the statutory period are all time-barred in view of section 32(2) and (5) of the Customs Act. Consequently, the impugned orders arising out of the said demands in these three cases are not sustainable in law and they are, therefore, without any lawful authority.

 

Panna Textile Mills Ltd vs Commissioner of Customs 11 BLC 349.

 

Section 32

 

An application of Articles 7(d) and 8(5) of the Order to the facts reveals that a right to a due, proper and final assessment of the goods accrued to the petitioner on the 100% physical examination of the goods conducted on 3-3-2002 resulting in the Physical Examination Report of that date confirming and affirming the accuracy of the CRF Certificate's assignment of the appropriate HS Code to the goods and the valuation thereof. The moment that right attached to the petitioner, it is found, it became obligatory upon the respondents to proceed as per the dictates of Article 8(5) and no more.

 

Aquamarine Distributions Ltd vs Bangladesh 17 BLC 551.

 

Sections 43 and 156(1)(40)

 

It appears that the customs authority while adjudicating under Section 156(1) (40) of the Customs Act, 1969 considered the shore tank survey report Exhibit 9(1) and found that the vessel has delivered short of 201.699 MT of CDSO and accordingly imposed penalty under the said provisions of law upon the vessel declaring agent of the vessel, the defendant No. 5. This Court since already found that a long line of decision of this Court have decided as to the method of ascertaining the dischargeable quantity of the Liquid Cargo as the ullage survey report, this Court further finds that the customs authority upon misconception of law found that the vessel 'MT Trompeteros' made a short delivery of 201.699 MT of CDSO and adjudicated under Section 156(1)(40) of the Customs Act 1969 against the declaring agent of the vessel and, as such, the same has no legal effect. The Customs authority if have realized any fine, is liable to refund it to the defendant No.5.

 

S Alam Vegetable Oil Ltd vs 'MT Trompeteros' 15 BLC 710.

 

Section 47

 

Vessel is liable to discharge the cargo if permission to break bulk cargo is obtained irrespective of the arrest order.

 

LMJ International Ltd. India vs MV BK Ace 16 BLC 256.

 

Section 73

 

The term "discharge" used in the Customs Act, 1969 is nothing but "unloading" of the cargo into the classified area of the Port.

 

LMJ International Ltd. India vs MV BK Ace 16 BLC 256.

 

Section 81

 

The word "shall" used in section 81 of the Customs Act is mandatory in nature. This mandatory provision has not been followed by the respondents and without making final assessment, respondent No.3 illegally proceeded with for encashment of Bank Guarantee which was furnished at the time of provisional assessment. It further appears that for encashment of Bank Guaran­tee the respondents did not issue any notice upon petitioner asking him as to why the Bank Guarantee should not be encashed. The respondents have made a clear violation of the mandatory provision of Section 81(2) of the Act and ordered the concerned bank for encashment of Bank guarantees.

 

Transfin Trading Ltd vs Commissioner of Customs 16 BLC 359.

 

Section 82A

 

Since there is no legal obstruction that could possibly disallow the customs authority to settle the long pending dispute regarding the release of the goods in question for the litigation which stood as a bar in so doing does not subsist any more. If in due course Title Suit No.324 of 2009 is decided in any manner under the law, the natural legal consequence will follow. But at the moment customs authority is in no way faced with any legal bar to settle the dispute in accordance with law.

 

Super Oil Refinery Ltd vs Commissioner Customs 16 BLC 6.

 

Section 82

 

It appears that the petitioner submitted the bill of entry for effecting release of six units of Volvo cars on 16-6-1998 and, therefore, liable to pay duties and taxes prevailing on the said date and accordingly, the assessment made in the relevant Customs Nothi was made in accordance with law.

 

Mahbubul Haque Sikder vs Commissioner of Customs 11 BLC 194.

 

Section 82

 

These factors now collectively contribute to this Court's view that the Order of attachment and the order of restraint evident in the Order dated 25-4-2007 must now necessarily be vacated. That being the case and given that the Commissioner of Customs by virtue of section 82 of the Customs Act is now entitled to sell the goods in auction, the goods.

 

KA Latif vs Olam International Ltd 13 BLC 457.

 

Section 82A

 

The Commissioner of Customs Bond or any other Commissioner of Customs is authorized by the Board to determine the value of the goods and fixed the value not by any third party. The respondent Nos.7 and 8 has no authority to refuse or to release the goods.

 

Md Mizanur Rahman vs National Board of Revenue 17 BLC 582.

 

Sections 82 & 201

 

Considering the facts and circumstances of the case, it would be just and proper to direct the plaintiffs to take delivery of the cargo from the two containers being container Nos. TCHU 2613312 and TCHU 2613375 within 2(two) weeks failing which the Customs Authority are to act as per sections 82 and 201 of the Customs Act and do the needful under the provisions of law.

 

Lloyds Triestino vs Astra Services Ltd 14 BLC 352.

 

Section 98

 

Since no specific period has been prescribed for keeping the imported goods in the Warehouse as contemplated in Section 98 of the Act and neither any Rule nor any statutory provision is found in the BEPZA Act, 1980 to regulate such matter prescribing the period; the BEPZA authority, being statutory body, to prescribe such period as contemplated in Rule 3(8) of the Customs Export Processing Zone Rules, 1984. Moreover, the BEPZA is also at liberty to accord permission to transfer the land building and machineries in favour of petitioner No.2 in pursuance of the rules and regulation prevailing in this respect.

 

Kapric Electronics (BD) Ltd vs Chairman, National Board of Revenue 17 BLC 597.

 

Section 156(1)

 

Table under item No. 24(ii)—On perusal of the impugned order it appears that the Customs Authority due to non application of mind as to the provision of item No. 24(ii) of the Table under section 156(1) of the Customs Act failed to consider that the shortage, if any, has to be calculated on the basis of the measurements taken on board the vessel i.e. Ullage Survey Report, and such a shortage cannot be calculated on the basis of survey conducted at the Shore Tanks as has been held by their Lordships in the Judgment and order dated 27-7-2005 passed in Writ Petition No. 948 of 1998, mentioned earlier. Accordingly, the Rule is made absolute.

 

Rainbow Shipping Lines vs Deputy Assistant Commissioner of Customs 11 BLC 630.

 

Sections 156(1) & 193

 

The Ullage Survey Report on board the vessel prevails against the Shore Tank Survey Report. The question of shortage as contemplated by item No. 24(ii) of the table under section 156(1) of the Customs Act, the 1% admissible Ocean allowance on the quantity carried by the vessel must be taken into consideration, and therefore the vessel/carrier cannot be held responsible for any shortage below 1% and such shortage cannot be said to be an offence committed under item No. 24(ii) of the table under section 156(1) of the Customs Act, 1969.

 

Seacom Shipping Ltd vs Customs, Excise and VAT Appellate Tribunal 11 BLC 83.

 

Sections 156(1) and 210

 

The Customs Authority seems to be invested with some responsibility to prevent any vessel from departing without the port clearance. The petitioner was made liable for short delivery according to the provision of section 210 of the Customs Act. It would seem that the vessel left the port without any port clearance. Now the question arises as to what extent the petitioner is liable for the short delivery taking into view that the petitioner cautioned the Port Authority and the Customs Authority and asked the Authority to take appropriate step not to allow the vessel to leave the outer anchorage but no measure whatsoever was taken by the said Authorities. Only fifty thousand taka may be imposed as fine for, not taking port clearance or permission in writing. The Tribunal, therefore, without applying its judicial mind merely on the basis of an opinion given by the Commissioner of Customs as indicated in the impugned order affirmed the order of the Commissioner reducing the penalty amount from 10 crore to 7, 18, 36,507. Carefully constructing the aforesaid provisions of the Customs Act it is held that those provisions are not at all attracted in the facts of the case. The impugned order passed by the Tribunal is liable to be struck down.

 

Momtaj Shipping Agency vs Bangladesh 14 BLC 305.

 

Section 156(l)(24)(ii)

 

The instant suit has been brought under the provision of Admiralty Court Ain, 2000. Section 3(2)(Cha)of the said Act provides that Admiralty suit shall be maintainable for recovery of compensation arising out of loss of or damage to goods carried in a ship. Therefore this Court finds that the cause of the plaintiff is squarely maintainable in this jurisdiction as such issue No. 1 is disposed of in favour of the plaintiff. This Court finds that as the ullage survey report confirms that the vessel had the quantity of 24,000 MT of CDSO and the same quantity of CDSO was has been discharged by the vessel in the lighterage tankers which carried the same to the shore tanks owned by the plaintiff and therefore the plaintiffs suffered no loss or damage on this Court. There being no short landing of the cargo from the vessel 'MT Trompeteros', the claim of the plaintiff as to incurring loss in respect of short landing has no substance to be considered by this Court. Moreover, since the adjudication made by the customs authority was not lawful, the plaintiffs have also not incurred any loss in respect of the customs Penalty which is not at all a liability of the plaintiff. Therefore, the question of business loss upon the alleged short landing does not come at all.

 

S Alarn Vegetable Oil Ltd vs 'MT Trompeteros' (Admiralty) 15 BLC 710.

 

Section 156(l)(24)(ii)

 

As per ullage survey report dated 5-7-1994) the quantity was found as Tallow G-l =1 ,999.632 metric tons and B 1 = 1,999.779 metric tons of Tallow. So, as per ullage survey report there was no shortage, as alleged, in the suit. The decision cited by he appellant's lawyer reported in 61 DLR 801 gets support from it. In the decision it has been held that the ullage survey must prevail over shore tank survey. In such view of the matter there has been no such short delivery and short received.

 

The assessment of the compensation in the present case was not made in accordance with law. The Court below passed the judgment and decree erroneously and, as such, it is liable to be set-aside.

 

Botany Bay Parcel Tankers International vs Lever Brothers (ED) Ltd 15 BLC 737.

 

Section 156(1)

 

In the event of a conflict between two reports, one by Ullage Survey by Shore Tank Survey, the Ullage Survey Report on board the vessel shall prevail over the report of the Shore Tank Survey. Ullage Survey is conducted both at the port of loading and at the port of delivery. The Courts below failed to consider that the shortage, if any, has to be calculated on the basis of the measurements taken on board the vessel taken as per ullage Survey conducted both at the port of loading and at the port of delivery and such a shortage cannot be calculated on the basis of Survey conducted at the shore tanks. There is no shortage as per the measurement taken on board the vessel taken as per Ullage Survey.

 

Botany Bay Shipping (Australia) Ltd vs Lever Brothers Bangladesh Ltd 16 BLC 909.

 

Sections 168 and 180

 

In the instant case, it appears that the goods were seized on 14-10-05, and the show-cause notice under section 180 of the Customs Act was issued on 11-6-06, i.e. long after eight months from the date of seizure, and thus the Customs officials have violated the provisions of law in not retiirning the goods to the petitioner, after expiry of two months, in spite of requests made from time to time and production of all legal documents.

 

The Customs authority acted illegally and without lawful authority in detaining the mobile sets for such long period and caused harassment and loss to the petitioner, who claims to be a genuine businessman and has purchased the mobile sets in normal course of his business, and thus entitled to recover loss and damages.

 

Monzur Islam (Md) vs Commissioner of Customs 12 BLC 460.

 

Section 193(C)(2)

 

For all practical purpose an importer under PSI scheme shall have to ventilate his grievance in terms of Rule 23(2) of the Rules, read with its other relevant rules. Appeal under section 193(C)(2) of the Act can only be preferred against the decision of the review committee given under rule 23 of Rules and, as already observed that Rule 13 of Valuation Rules 2000 shall apply only in case of importers who are not under PSI scheme.

 

LR Khan (Md) vs Customs Excise and VAT Appellate Tribunal 17 BLC 249.

 

Section 196D and 196G(1)

 

Where an appeal is preferred before the High Court Division under section 196D of the Customs Act, the High Court Division is not required lobe formally admitted such appeal after its registration in view of section 196G(1).

 

Mohitur Rahman vs National Board of Revenue 16 BLC 661

 

Section 196D and 196G(D)—

 

An appeal under 196D of the Customs Act preferred before the High Court Division must be disposed of on merit under section 196G(1) as distinguished from a Criminal Appeal or Civil Appeal.

 

Mohitur Rahman (Md) vs National Board of Revenue 16 BLC 661

 

Section 202

 

The respondents have not controverted or denied the issuance of the certificates by the customs in favour of the petitioner certifying that the petitioner imported the aforesaid consignments of capital machinery and accessories and upon clearance of the same set up its textile industry and produced cotton yarns and exported the same in due compliance of the said undertakings. Accordingly, the petitioner by a letter dated 19-7-1997, Annexure-A to the Writ Petition No. 3942 of 2002, requested the Commissioner of Customs to return the said Indemnity Bonds but without any response. The customs nonetheless made the impugned demands to pay the customs duty on the ground that the petitioner breached the undertakings given in the said Indemnity Bonds. The impugned Notices dated 31-10-2000 and 1-7-2004 under section 202 and demand dated 26-10-2004 are not only illegal, malafide and without jurisdiction but they also offend the principle of legitimate expectation and are malice in law.

 

Panna Textile Mills Ltd vs Commissioner of Customs 11 BLC 349.

 

Section 219(2)

 

On a plain reading of section 219(2) it appears that the legislature protected generality of the different provisions governing the Customs Act. Chapter 17 of the Customs Act deals with the provision relating to offences and penalties. While dealing with the offences and penalty in accordance with the different provisions of the said Chapter prin-ciple of natural justice must be observed in the procedure of departmental or judicial, for trial of Customs offences.

 

Saint Martin Commodities Ltd vs Licensing Authority, Customs House 16 BLC 49.

647

Customs Agent (Licensing) Rules, 1986

Citation: 13 BLC 1

Case Year: 1986

Subject: Customs Agent (Licensing)

Delivery Date: 2018-06-27

Customs Agent (Licensing) Rules, 1986

 

Rule 22

 

As the matter is related with the interpretation of violation of principle of natural justice and different Articles of the Constitution in particular Article 40, this writ etition is maintainable even without exhausting the provision of appeal envisaged under rule 22 of the Customs Agent Licensing Rules, 1986.

 

Saint Martin Commo­dities Ltd vs Licensing Authority, Customs House 16 BLC 49.

 

Defence of Pakistan Rules, 1965 Rules 2, 161, 169

 

No baluster could be laid by former Enemy Property now Vested Property in treating Krishna Chandra or Kala Chand and Ram Chandra, Radhika Mohan and Madan Mohan as enemies and suit property as Enemy property now Vested property and the suit property cannot be at all brought under the mischief of former Enemy Property now Vested Property.

 

Hari Rani Basak vs Bangladesh 13 BLC 1.

 

Rule 169(4)

 

No paper or documents had been produced from the side of Enemy Property Authority in support of the case programmed by it that the suit property is Enemy property. There had been total lack of evidence on the part of Enemy Property Authority that predecessors of plaintiff-petitioner, Ram Chandra Basak, Krishna Chandra Basak and Kala Chand Basak left Bangladesh for India at any point of time and they became enemies and suit property became Enemy property.

 

Hari Rani Basak vs Bangladesh 13 BLC 1.

648

Dhaka City Corporation Public

Citation: 13 BLC 418

Subject: Dhaka City Corporation Public

Delivery Date: 2018-07-01

Dhaka City Corporation Public

 

Market By-laws, 2003 Rule 4(kha)

 

It appears that peti­tioner's Samity is entitled to get allotment of shops from the reserved quota of Mayor. Therefore, the respondent Nos. 3-6 are directed to consider the application of the petitioner's Samity in respect of allotment of shops from the reserved quota of Mayor as provided in Rule-4 pursuant to the resolution dated 9-10-2005. The respondent Nos. 3-6 shall strictly follow the procedure of allotment of shops in Public Market as laid down in the provisions in future.

 

Muktijoddha Bahu-mukhi Samabaya Samity vs Bangladesh 13 BLC 418.

649

Dhaka Mahanagar Building Construction Rules, 2006

Citation: 15 BLC 770, 15 BLC 91

Case Year: 2006

Subject: Dhaka Mahanagar Building Construction

Delivery Date: 2018-07-01

Dhaka Mahanagar Building

Construction Rules, 2006

 

Rule 45

 

It is well-settled that mala-fides goes to the root of jurisdiction and if the impugned action is malafide, the alternative remedy provided by the statute need not be availed of. Neither the Building Construction Act, 1952 nor 1995 expressly or impliedly excludes the operation of the principle of "Audi Alterant Partem". As Dr SA Mahmood's right to enjoyment of the case plot was adversely affected by the impugned Memos of the Environment Directorate and the RAJUK; in all fairness and reasonableness, he ought not to have been condemned unheard. To all intents and purposes, in our assessment, the Environ­ment Directorate and the RAJUK's impugned Memos dated 26-8-2009 and 7-9-2009 res­pectively are unreasonable in the Wednes-bury sense. As the said Memos Dated 26-8-2009 and 7-9-2009 are malafide and without jurisdiction, Dr SA Mahmood was not required to approach the Appellate Authority either under Section 14 of the *lfe^*f tt^f 1%, i!»!»(t or under Section 15 of the Building Construction Act, 1952 and he rightly approached the High Court Division directly under Article 102 of the Constitution.

 

Unique Hotel and Resorts Ltd vs Bangladesh 15 BLC 770

 

Dhaka Stock Exchange Limited Listing Regulations Regulations   5(2)(IV)    and    14

 

Itappears that if there is any conflict between the Companies Act, 1994 and sub-section (2) of section 31, of the Ordinance, the provisions of the Ordinance shall prevail. Therefore, the Memorandum and Articles of Associations cannot override the terms of the sections mentioned before. Regulations 5(2)(iv) and 14 have been in the Listing Regulations of the DSE since 1996. The petitioner-company has. been incorporated knowing fully well about all the existing laws of the country. At this stage, the petitioner-company cannot take a different plea contrary to the laws existing at the time of its incorporation.

 

One Bank Ltd vs Bangladesh 15 BLC 91.

650

Dhaka University Order, 1973

Citation: 11 BLC 530

Case Year: 1973

Subject: Dhaka University

Delivery Date: 2018-07-01

Dhaka University Order, 1973

[PO 11 of 1973]

 

Article 52

 

It is contended on behalf of the petitioner that the plaintiff if at all appeared in the Viva-Voce examination she ought to have submitted an application in the form of an appeal before the Vice-Chancellor of Dhaka University under Article 52 of the Dhaka University Ordinance, 1973 (President Order 11 of 1973). The word may used in Article 52 should mean to be treated as shall. The question of maintainability decided in a case in writ jurisdiction the principle enunciated in that decision is applicable in the instant case.

 

University of Dhaka vs Shikha Rani Roy 11 BLC 530.

651

Easement Act, 1882

Citation: 16 BLC 649, 12 BLC 129, 11 BLC (AD) 94, 11 BLC (AD) 100

Case Year: 1882

Subject: Easement

Delivery Date: 2018-07-01

Easement Act, 1882

[V of 1882]

 

Section 2(b)

 

As the 'custom' and 'usage' have been recognised as 'law' under Ariticle 152(1) of Constitution the impugned order to settle Mohal Shamil Jolkars by tender ignoring the customary right of the local people was issued without lawful authority and is of no legal effect. The respondents were directed to adopt a separate policy guideline for the Mohal Shamil Jolkars considering the customary right of the local people.

 

Toyabur Rahman (Md) vs Bangladesh 16 BLC 649.

 

Section 4

 

There is no document of partition. The plaintiffs' suit for declaration of their right of easement as claimed in the plaint is not maintainable as per the provision of section 4 of the Easement Act.0 The suit land was not finally allotted to the defendant No.l. Defendant No.l is not the owner of the suit land alone, wherein the plaintiffs are joint owners of the suit land. Thus, they cannot maintain the suit and cannot get decree for easement. Since, it has been found that the property is in joint occupation of the plaintiffs and the defen­dants, and they are all co-owners of the suit plot, the plaintiffs as co-owners of the property can enjoy the property jointly with other co-sharers.

 

Mufti AM Jalaluddin vs Hazera, Khatun being dead her heirs Nasiruddin Ahmed 12 BLC 129.

 

Section 60

 

The plaintiff having filed all the material documents showing the title to the suit land including the Khatian being an evidence of possession as well as collateral evidence of title, was entitled to recovery of possession from the defendant, which under the circumstances, go to show that he was in permissive possession in the suit land as asserted by the plaintiff.

 

Badal Chandra Das vs Amena Khatun 11 BLC (AD) 94.

 

Section 60

 

On perusal of the judgment of the trial Court it appears that the trial Court failed to appreciate the difference between the owner and licensee in respect of the property and, as such, did not place any reliance on Exhibits 'E' and 'U' which proved that the permission given by the defendant No. 3 to the suit property for a short period and the plaintiff, is none but a mere licensee and the period having been expired the plaintiff had no subsisting legal interest for enforcement by way of an injunction.

 

Paper Converting and Packaging Ltd vs Bangladesh 11 BLC (AD) 100.

652

Election Conduct Rules, 1972

Citation: 12 BLC 484

Case Year: 1972

Subject: Election Conduct

Delivery Date: 2018-07-01

Election Conduct Rules, 1972

 

Rule 9(1)

 

Considering the legal position that the election symbols boat, plough and Sheaf of Paddy were included in the Conduct of Election Rules, 1972 made by the government in exercise of the powers conferred by Article 96 of the Representation of the People Order, 1972 which was published in the Bangladesh Gazette Extra­ordinary on December 27, 1972. The impugned election symbols will in no way undermine and tarnish the image and dignity of the concerned organisations of the government, and that it will not create any confusion in the mind of the people of the country. These symbols will be used as election symbols if allocated by the Election Commission to any party only during the election time for the purpose of conducting the election. By the use of the symbols Boat, Plough and Sheaf of Paddy the Monogram of concerned Government Organisations or the National Emblem will not be desecrated.

 

Advocate Md Shahadat Hossain vs Bangladesh 12 BLC 484.

653

Electoral Rolls Ordinance, 1982

Citation: 11 BLC (AD) 113, 11 BLC 380, 11 BLC (AD) 113,

Case Year: 1982

Subject: Electoral Rolls

Delivery Date: 2018-07-01

Electoral Rolls Ordinance, 1982

[LXI of 1982]

 

Sections 5, 7, 10, 11 and 13

 

Per Amirul Kabir Chowdhury } (author Judge) : The Commission should prepare Electoral Roll taking into consideration of the existing Roll under section 7(6) of the Ordinance. If there is a computerised database the commission should make the best use of it and, if not, a Computerised Electoral Roll with database should always be maintained to avoid future controversy, cost and labour.

 

Election Commission vs Alhaj Advocate Md Rahmat Ali, MP 11 BLC (AD) 113.

 

Sections 5,6,7,10 and 11

 

In view of the provisions of section 7(6) of the Ordinance the Commission must maintain an Electoral Roll which must hold the field till the publication of the Electoral Roll prepared by the Commission and the Election Commis­sion cannot be oblivious of the existing list. The voters whose names appear in the existing roll cannot be dropped unless one is dead, declared to be of unsound mind by a competent Court or has ceased to be resident or ceased to be deemed to be a resident of that area or constituency. The right to be a voter under Article 122 read with section 7(1) of the Ordinance, 1982 cannot be made dependent on his being present when the Enumerators visit his house or on his signature in a particular form. The Commis­sion is vested with the task of preparing the Electoral Roll as per law.

 

Alhaj Advocate Md Rahmat-All, MP -vs Election Commission and ors 11 BLC 11 BLC 380.

 

Sections 7(1)(6)(7), 10 and 11

 

Per Md Ruhul Amin } (agreeing) : The Ordinance and the Rules framed under the Ordinance postulate continuation of existing electoral roll with necessary additions, deletions, revision, modifications, corrections and amendments. Whenever the Commission will take step for preparation of electoral roll, the same will perform the said function upon taking into consideration the list maintained under section 7(6) of the Ordinance in the light of the provisions of sections 10 and 11 of the Ordinance as well as Rules 20 and 21 of the Rules and not by scrapping or obliterating the existing list.

 

Election Commission vs Alhaj Advocate Md Rahmat Ali, MP 11 BLC (AD) 113.

 

Sections 7(1) to (7), 10 , 11 and 15

 

Per Md Tafazzul Islam ] (concurring) : Before the 9th Parliamentary election it is the existing electoral roll, i.e. the electoral roll of 2000, with some addition, deletions and modifica­tion as may be necessary, which is to be published as draft electoral roll and since the electoral roll 2000 will be the basis for preparing the draft electoral roll, the same has a continuity. It also appears that sub-rule 1 of rule 21 refers to rules 7-18 which contain the procedure for inclusion, deletion and correction and Rule 14 provides for issuance of notice in the case of correction of an entry and Rule 15 also provides for service of such notice either personally or by post. So, the decision of High Court Division, with the observations/directions as contained in paragraphs III and IV of the judgment and order does not call for any interference.

 

Election Commission vs Alhaj Advocate Md Rahmat Ali, MP 11 BLC (AD) 113.

654

Electoral Rolls Rules, 1982

Citation: 11 BLC (AD) 113

Case Year: 1982

Subject: Electoral Rolls

Delivery Date: 2018-07-01

Electoral Rolls Rules, 1982

 

Rules 4, 10 and 20(3)(4)

 

Per Amirul Kabir Chowdhury } (author Judge): The persons whose names are already in the existing Electoral Roll cannot be dropped from that Roll unless they are dead or have been declared to be of unsound mind or less than 18 years of age or ceased to be a citizen of Bangladesh; or ceased to be deemed by law to be residents of the electoral area/ constituency. The Commission, if occasion arises for dropping the name from the existing Electoral Roll, then shall do the same following the procedure as laid down in sub-rules (3) and (4) of the Rule 20 of the Electoral Rolls Rules 1982.

 

Election Commission vs Alhaj Advocate Md Rahmat AH, MP 11 BLC (AD) 113.

 

Rules 20,21,22,23 and 26

 

Per Md Ruhul Amin } (agreeing): Device for preparing voter list without scrapping existing voter list is very much in the Ordinance (sections 10 and 11) and the Rules (Rules 20 and 21) framed under the Ordinance. The continuity of voter list, or in other words, non-scrapping of existing voter list is also seen from the provision of section 11A of the Ordinance and the Rules 22, 23 and 26. In fine, the Ordinance and the Rules framed under the Ordinance postulate continuation of existing electoral roll with necessary additions, deletions, revision, modifications, corrections and amendments. Whenever the Commission will take step for preparation of electoral roll, the same will perform the said function upon taking into consideration the list maintained under section 7(6) of the Ordinance in the light of the provisions of sections 10 and 11 of the Ordinance as well as Rules 20 and 21 of the Rules and not by scrapping or obliterating the existing list.

 

Election Commission vs Alhaj Advocate Md Rahmat AH, MP and ors 11 BLC (AD) 113.

655

Electricity Act, 1910

Citation: 16 BLC 424

Case Year: 1910

Subject: Electricity

Delivery Date: 2018-07-01

Electricity Act, 1910

[IX of 1910]

 

Sections 24 and 54C

 

Without making payment of supplementary bill the plaintiffs have no right to institute the suit. The plaintiffs have not come with clean hands. The balance of convenience and the question of irreparable loss are absent in this case. Although the petitioners are not entitled to any order of injunction before making supplementary bills but this Court has granted injunction, the petitioner was directed to make payment of all the bills within 60 days failing which the order of injunction shall stand vacated.

 

BM Steel Private Ltd vs Chairman, Power Development Board 16 BLC 424.

656

Emergency Requisition of Property Act, 1948

Citation: 11 BLC (AD) 226, 13 BLC (AD) 93

Case Year: 1948

Subject: Emergency Requisition of Property

Delivery Date: 2018-07-01

Emergency Requisition of Property Act, 1948

 [XIII of 1948]

 

Section 8B

 

No release of acquired land after payment of compensation money—It is clear that after payment of compensation money to the original owners, under provi­sions of section 8B (Emergency) Requisition of Property Act, 1948 the acquired land cannot be released in favour of the original owners.

 

Bangladesh, represented by the Secretary, Ministry of Land vs Samondm Narayan Mahajan 11 BLC (AD) 226.

 

Section 8B

 

Learned Deputy Attorney-General contends that possession of the writ petitioner's requisitioned property had not been taken over by the Authority and the same had been de-requisitioned at the initial stage under section 8B of the (Emergency) Requisition of Property Act, 1948. In such view of the matter, there is no reason to review/revise the finding and observations of the Appellate Division dated 4-8-1997 passed in CPLA No. 567 of 1996. While allowing the appeal the Appellate Division has maintained the possession of the respondent in respect of 15 decimals of land out of 0.66 acre of land already handed over to respondent.

 

Secretary, Ministry of LA & LR vs Sultana Ferdous Ara Khanam 13 BLC (AD) 93.

657

Employment of Labour (Standing Orders) Act, 1965

Citation: 16 BLC (AD) 30, 12 BLC 546, 12 BLC 289, 16 BLC 889, 16 BLC 571

Case Year: 1965

Subject: Employment of Labour (Standing Orders)

Delivery Date: 2018-07-01

Employment of Labour (Standing Orders) Act, 1965

 [vm of 1965]

 

Sections 2 and 25(1) (b)

 

The provi­sions of Employment of Labour (Standing Orders) Act, 1965 are not at all applicable for the workers of Bangladesh Water Develop­ment Board as the same is creation of statute with no object to make profit.

 

Bangladesh Water Development vs Chairman, Divisional Labour Court 16 BLC (AD) 30.

 

Section 2(v)

 

Considering all the aspects of the matter, it appears that the petitioner is a "worker" within the meaning of section 2(v) of the Employment of Labour (Standing Orders) Act, 1965 and, as such, the instant Writ petition is not maintainable since equally efficacious remedy is available to the petitioner under the aforesaid Act as well as under the Industrial Relations Ordinance, 1969 before the Labour Court.

 

Abdur Razzaque Mondal (Md) vs Bangladesh 12 BLC 546.

 

Section 17(2)(3)(b)

 

In the instant case, admittedly the respondent No. 2 has himself not misappropriated any fund of the petitioner Mill and though he has committed an act of misconduct by complying with the unlawful order of his superior officer to compete with the competitors. His previous service record has been found to be satisfactory. So, in awarding punishment under this Act, it is within discretion of the employer to consider the gravity of the misconduct, the previous record and also any other extenuating circumstance that may exist. Relying on the decision reported in 45 DLR (AD) 61 it is held that the respondent No, I, Divisional Labour Court, Khulna rightly passed the impugned judgment and order dated 18-1-2001 converting the order of dismissal into an order of discharge and, as such, no interference is called for.

 

Star Jute Mills Ltd vs Chairman, Divisional Labour Court 12 BLC 289.

 

Section 17(3)

 

The High Court Division affirmed the judgment and order passed by the Labour Court. The respondent No.2 was charged with making over payments which constitutes misconduct within the meaning of section 17(3) of the Employment of Labour (Standing Orders) Act, 1965; inquiry was held and he was given full opportunity of being heard and the inquiry committee found him (respondent No.2) guilty of the offence charged with, and he was dismissed from his service. The impugned judgment is liable to be set-aside. Since the respondent No.2 was a worker and served for 15 years in the appellant company, the Appellate Division is inclined to allow him (respondent No.2) to have some benefits and accordingly, allowed the appeal, but with modification, inasmuch as the order of dismissal is converted into an order of termination and the respondent No.2 shall be given termination benefits as per­missible under the law.

 

Chittagong Jute Manufacturing Co Ltd vs Chairman 1st Labour Court, Ctgll BLC (AD) 83.

 

Section 25

 

The complaint cases having been filed under section 25 of the Employment of Labour (Standing Order) Act of 1965 and the judgment passed in such cases is final against which appeal under section 33(6) of the Bangladesh Labour Act, 2006 is impermissible.

 

Icjbal Hossain vs Chairman, Labour Appellate Tribunal 16 BLC 889

 

Section 25 (l)(a)

 

The finding clearly shows that the opinions of the learned mem­bers were duly considered and on consideration of the same the impugned judgment and order was delivered. It cannot be said that the petitioner was terminated because of the trade union activities.

 

SM Kamahlddin vs Chairman, 1st. Labour Court 16 BLC 571.

658

Enemy Property (Continuance of Emergency Provision) Ordinance, 1969

 

EnemyProperty (Continuance of Emergency Provision) Ordinance [I of 1969]


EnemyProperty (Continuance of Emergency Provisions) Ordinance I of 1969–(Continuance of Emergency Provisions) (Repeal) Ordinance–Repeal Act XLV of1974– Ordinance 93 of 1976. All Enemy Property vested in the Custodian isvested in Government.

ThisRepealing Act in section 3(1) provides, inter alia, that all enemy propertyvested in the Custodian of Enemy Property appointed under the Defence ofPakistan Rules as continued in force "shall vest in the government".This section was amended by Ordinance No. 93 of 1976 which provides that theenemy property vested in the government shall be administered, controlled,managed or disposed of by transfer or otherwise by the Government.

With theenactment of the Repealing Act as amended by Ordinance 93 of 1976, we find thatthe property which was 'enemy property' under the Defence of Pakistan Rules hasbecome 'vested property' and that the Government got all powers to administer,control and dispose of it by transfer or otherwise.

PriyatoshTalukder vs Asstt. Custodian 39 DLR (AD) 178.

 

Bythe amendment of section 3 of Act No. 45 of 1974 the entire complexion of enemyproperty was changed and power was given for disposal or transfer to thegovernment vide section 2 of Ordinance No. 93of1976.

Thelegislative process has undergone change from "preservation" of EnemyProperty to administration and disposal of the said Property under Order No. 93of 1976.

Governmenthaving stepped into the shoes of the Custodian by PO No. 29of1972 and Act No.45 of 1974 cannot be heard to say that it has no power to transfer the propertyin question. The Custodian has no claim to such property.

In 1976 theGovernment became the sole authority and got power of disposal and transfer byOrder No. 93 of 1976.

RahimaAkhter vs AK Bose 40 DLR (AD) 23.

 

Section 2–

Since thelaw of enemy property itself died with the repeal of Ordinance No. 1 of 1969 on23–3–1974 no further Vested Property case can be started thereafter on thebasis of the law which is already dead.

Aroti RaniPaul vs Sudarshan Kumar Paul and others 56 DLR (AD) 73.

 

Section 3–

OrdinanceNo. 1 of 1969 w315 repealed by Ordinance No. 4of1974. The Enemy Property vestedin the Custodian has been vested in the Government by repeal of rule 182 ofDefence of Pakistan Rules by Ordinance No. 4 of 1974.

RahimaAkhter vs AK Bose 40 DLR (AD) 23.

 

Section 3–

Since thelaw on enemy property itself died with the repeal of Ordinance No. I of 1969 on23–3–74, no further vested property case can be started thereafter on the basisof the law which is already dead.

Laxmi KantaRoy vs Upozila Nirbahi Officer 46 DLR 136.

 

Section 3(1) Clause 4(1)–

VestedProperty –Execution of document in an Exchange case­. After a deed ofsettlement was executed by a competent officer of the Government whether itcould take the plea that the officer had acted without its authority–Under theprovisions of Act XLV of 1974 a vested property can be transferred by theGovernment or by such officer as the Government may direct. The Governmenthaving directed the ADC (Rev). to take necessary action in the matter and inview of circulars on the subject, there is no room for doubt that the ADC wasduly authorised to execute and register the deed of settlement. The ordersetting aside the deed is therefore without lawful authority.

Muzaffar Alivs Bangladesh 43 DLR (AD) 137.

 
659

Enemy Property (Contiuance of Emergency Pro visions) (Repeal) Act, 1974

Citation: 14 BLC 873

Case Year: 1974

Subject: Enemy Property (Contiuance of Emergency Pro visions)

Delivery Date: 2018-07-01

Enemy Property (Contiuance of Emergency Pro visions)

(Repeal) Act, 1974

[XLV of 1974]

 

Section 3

 

The evidence of DW 1 has clearly indicated that the government failed to prove the legal foundation for enlisting the suit property as enemy property producing the census list and if the foundation goes, in that case, the version of the plaintiff that she purchased the land by 2 registered deeds get support of her interest in the suit property. Over all, on the evaluation of the evidence along with the judgments of both the courts, it has been revealed that the Courts below committed error of law in holding that the plaintiff could not prove her right, title and possession in the suit land which is an error in the decision occasioning failure of justice.

 

Indrani Nath vs Thana Nirbahi Officer 14 BLC 873.

660

Enemy Property (Land and Building) Administration and Disposal Order, 1966

Citation: 13 BLC 1,

Case Year: 1966

Subject: Enemy Property (Land and Building) Administration and Disposal

Delivery Date: 2018-07-01

Enemy Property (Land and Building)

Administration and Disposal Order, 1966

 

Fifth Paragraph

 

Plaintiff in exercise of her right, title and interest and possession by way of inheritance and auction purchase having been on suit property she could not be said to be in unlawful possession within the meaning of Fifth Paragraph of Enemy Property (Lands and Buildings) Administra­tion and Disposal Order, 1966 and issuance of notice against Dulal Chandra, husband of plaintiff, treating him as unauthorised possessor and asking him to surrender possession was absolutely illegal and without jurisdiction, inasmuch as possession of Dulal Chandra as husband of plaintiff was never unlawful, and he, also, could not be issued by any notice to surrender possession of suit property.

 

Hari Rani Basak vs Bangladesh 14 BLC 1.

 

Article 4(3)

 

Sub-Article 3 of Article 4 of East Pakistan (Land and Buildings) Admi­nistration Disposal Order, 1966 enshrines that notwithstanding anything contained in any other law for the time being in force or in any agreement, a person to whom any property is leased out or let out under sub-paragraph (2) shall not acquire any right of occupation in such property and shall not be entitled to hold over after the expiry of period of lease. None of defendant-opposite parties could show by any documentary evidence that lease had been granted to them and the same had been renewed from year to year.

 

Hari Rani Basak vs Bangladesh 13 BLC 1.

661

Export Processing Zone Rules, 1984

Citation: 17 BLC 597

Case Year: 1984

Subject: Export Processing Zone

Delivery Date: 2018-07-02

Export Processing Zone Rules, 1984

 

Rule 3(8)

 

Since no specific period has been prescribed for keeping the imported goods in the Warehouse as contemplated in Section 98 of the Act and neither any Rule nor any statutory provision is found in the BEPZA Act, 1980 to regulate such matter prescribing the period; the BEPZA authority, being statutory body, to prescribe such period as contemplated in Rule 3(8) of the Customs Export Processing Zone Rules, 1984. Moreover, the BEPZA is also at liberty to accord permission to transfer the land building and machineries in favour of petitioner No.2 in pursuance of the rules and regulation prevailing in this respect.

 

Kapric Electronics (BD) Ltd vs Chairman, National Board of Revenue 17 BLC 597.

662

Family Court Ordinance, 1985

Citation: 15 BLC 698, 11 BLC (AD) 77, 15 BLC 338, 11 BLC 516, 13 BLC (AD) 137, 14 BLC 293, 12 BLC 245, 15 BLC 321

Case Year: 1985

Subject: Family Court

Delivery Date: 2018-07-02

Family Court Ordinance, 1985        

  [XVIII of 1985]

 

Sections   3,   16(3)   and   20

 

Law  of Limitation is applicable in Family suits Section 3 does not debar the application of Limitation Act to suits filed under the ordinance. It may be noticed that the legislature has taken care to mention certain specific laws which shall not apply to proceeding before the Family Courts and in enumerating such laws that Limitation Act has not been mentioned. Applying the well known maxim of interpretation of statutes "Expressio unios est exclusion alterius" (the express mention of one thing implies the exclusion of another), it can be safely held that the express mention of the Evidence Act and the Code of Civil Procedure necessarily implies the exclusion of Limitation Act from the purview of non applicability to suits under the ordinance. Therefore, I hold that Limitation Act is applicable in Family Suit instituted under the Family Courts Ordinance, 1985.

 

Siddique Miah vs Mazeda Begum 15 BLC 698.

 

Section 5

 

Since the payment of main­tenance for the child a continuous process, the door of the Courts is always open to the child's mother to ensure the payment of the maintenance for the child, if ever there is any default in payment. Equally, the father has the right of access as mentioned in the solenama.

 

Anika AH vs Rezwanul Ahsan 11 BLC (AD) 77.

 

Section 5

 

It would be convenient and lawful if the judgment and decree of the appellate Court is set-aside as a whole and the maintenance of the plaintiff Nos. 2-4 each be fixed at the rate of Taka 2,000 per month that will save them from poverty. I find that the Court of appeal has committed an error of law resulting error in the decision occasio­ning a failure of justice in deciding the appeal. I find merit in the Rule. The defendant shall pay the decretal money towards maintenance of the wife at a time. The defendant is directed to pay the maintenance of the plaintiff Nos. 2-4 by 6 equal installments. The defendant is directed to pay the 1st installment within one month from date and thereafter to make payment of every installment after each two months.

 

Renuara Begum vs Mir Md Sfwmsuzzaman 15 BLC 338.

 

Section 5(e)—Guardianship and custody of children

 

It is well settled that mother is entitled to custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by father of child, unless she marries a second husband in which case custody belongs to the father.

 

Jaymala Baroy @ Shamsun Naher vs Dilip Kumer Baroy 15 BLC 48.

 

Section 5(a)(c)(d)

 

Plaintiff-opposite-party Shahinoor Akhter & Bijlee is legally entitled to get maintenance during the period of Iddat, that is, for 3(three) months from the date of divorce. In view of legal position it is clear that a Muslim is guided by his personal law and not by secular law. The contention of Mr Abdul Majid, the learned Advocate for the opposite-party, that Criminal Procedure Code has overriding force over Muslim Family Law Ordinance is not correct and his cited decision under section 488 of the Code of Criminal Procedure as regards the determination of age for getting maintenance is quite distinguishable in the facts and circumstances of the present case. In view of the discussion and decision referred, Yunus Arafat is entitled to get maintenance upto the age of puberty, that is, when he completes the age of 15 years.

 

Ikhtiar Hossain Choudhury vs Shahenoor Akhter 11 BLC 516.

 

Section 5(c)(d)

 

The High Court Divi­sion rightly made the Rule absolute modifying the judgment and decree of the Family Court with the directions that the petitioner will pay the respondent No. 1 Taka 5,001 as dower also pay her lump sum amount of Taka 20,000 in four instalments @ Taka 5,000 per quarter as maintenance and also pay the respondent No. 1 maintenance @ Taka 500 per month till she marries again and the petitioner will also pay the respondent No. 2 maintenance @ Taka 300 per month from the date of her birth and will continue to give her the amount till her marriage.

 

Abdur Rakib vs Shertaj Khatun 13 BLC (AD) 137.

 

Sections 6 and 10

 

The plaintiff instituted Family Suit No. 19 of 2002 in the Family Court, under the Provisions laid down in section 6 of the Family Court Ordinance, 1985. Section 10 of the Muslim Family Laws Ordinance, 1961 provides that where no details about the mode of payment of dower are specified in nikahnama or the marriage contract, the entire amount of the dower shall be presumed to be payable on demand. So, the learned Judge of the Court of appeal below rightly decreed the suit as a whole, directing for payment of entire amount of dower. Moreso, the Provisions of section 10 of The Muslim Family Laws Ordinance, 1961 is applicable in the instant case.

 

Waned All vs Moslema Khatun 14 BLC 293.

 

Sections 16A and 17

 

In the instant case, the marriage between the plaintiff and defendant is admitted. It is the claim of the plaintiff that she was driven out from the house of her husband and he is not maintaining her. The prime facie case is established and the balance of convenience is also in favour of the plaintiff. If the learned trial Court would not grant interim order of injunction, the purpose of the suit would have been frustrated whereby the plaintiff would suffer irreparable loss. The learned trial Court correctly passed the interim order of injunction.

 

Emdadul Haque (Md) vs Feroja Attiter 12 BLC 245

 

Sections 16A and 20

 

Where at any stage of a suit, the Family Court is satisfied by affidavit or otherwise that immediate action should be taken for preventing any party from frustrating the purpose of the suit, it may exercise power conferred under section 16A of the Ordinance, irrespective of section 20 of the Ordinance.

 

Asrmul Hosna vs Major MohiuddinU BLC 328

 

Section 16A

 

Admittedly since 5-4-2009, children are in custody to the plaintiff and there is no allegation against their welfare. It is true that in Muslim Law father if alive is the natural guardian of the persons and property of his minor child. He does not require an order of the Court to support his right to act as guardian in any matter, but when the Court is satisfied that it is for welfare of children that an order should be made for their custody the Court may make an order accordingly. In view of such facts I hold that the order of the Court of appeal below is not just and proper which is required to be modified. To the effect that parties are directed to maintain status quo in respect of custody of children.

 

Abdul Quddus vs Syed Moinul Ahsan Sajjad 15 BLC 321.

663

Foreign Exchange Regulation Act, 1947

Citation: 13 BLC 98, 13 BLC 763, 11 BLC 280

Case Year: 1947

Subject: Foreign Exchange Regulation

Delivery Date: 2018-07-02

Foreign Exchange Regulation Act, 1947

[VII of 1947]

 

Section 3

 

Admittedly, a Money Chan­ger licence was issued by the Bank to the petitioner in accordance with the provision of section 3 of the Foreign Exchange Regulation Act, 1947 on 15th June, 1997 subject to the terms and conditions of the letter dated 15th June, 1977. Admittedly, the petitioner himself admitted the first irregularities found on inspection. Thus, we find no illegality in the impugned order cancelling the licence of the petitioner. This irregularity, in our opinion, is a gross irregularity in case of a money changer business and not a nominal one as contended by Mr Chowdhury.

 

Mosharraf Hossain (Md) vs Bangladesh Bank 13 BLC 98.

 

Sections 18, ISA and 18B

 

Upon a perusal of the documents as produced by and on behalf of the defendant Nos. 1,2,5 and 15 this Court finds no reason to question the scope and validity of the agency powers vested in the concerned Protecting and Declaring Agents to represent their foreign principals before this Court in all matters pertaining to and arising out of this Suit.

 

HRC Shipping Ltd vs 'MV Lady Fatima' and 'MV Da Li' 13 BLC 763.

 

Sections 18 and 21

 

The learned trial Court quoting section 18 of Foreign Exchange Regulation Act, 1947 held that prior to make sale contract, the party is required to obtain permission from Bangladesh government and in the absence of such permission, the sale contract is illegal which is not tenable in law as that section does not apply in this case because the agreement for sale is not a complete contract which is merely a bainapatra. The plaintiff is not a resident of Bangladesh. In para 5 of the agreement, there is a term that the defendant will obtain necessary permission from the government or any other agency for the effective transfer of property. The plaintiff performed the terms of the agreement for sale in toto, so, he is also protected by section 21 of the Foreign Exchange Regulation Act, 1947.

 

M Manzur Ahmed vs Inge Flatz 11 BLC 280.

664

Forest Act, 1927

Citation: 11 BLC 714

Case Year: 1927

Subject: Forest Act

Delivery Date: 2018-07-02

Forest Act, 1927

[XVI of 1927]

 

Section 4

 

 It is admitted that nature of land is forest. The defendants claim the suit land on the basis of amalnama dated 15th Poush, 1344 BS taken by Abdul Gafur; that Zaminder granted Dakhilas; that RS and SA record were prepared in the name of Abdul Gafur and that Abdul Gafur paid rent to the government. CS record which was finally published long before 1938 AD and thus the appearance of the name of Abdul Gafur in CS Khatian, who alleged to have taken settlement some time in 1938 AD, have been proved to be fabricated and manufactured one. Moreover, the amalnama has not been proved as per law. Since the foundation of Title of the defendants-respondents has not been proved and thus the CS khatian has been proved fabricated and manufactured and the SA khatian prepared on the basis of alleged CS khatian has no leg to stand. Dhakalias granted on the basis of khatian does not create any title which was also obtained fraudulently.

 

Bangladesh vs Serajul Haque 11 BLC 714.

665

Gazetted Officers (Urban Development Directorate) Recruitment Rules, 1974

Citation: 13 BLC 494

Case Year: 1974

Subject: Gazetted Officers (Urban Development Directorate) Recruitment

Delivery Date: 2018-07-02

Gazetted Officers (Urban Development Directorate)

 Recruitment Rules, 1974

 

Serial 4 of the Schedule

 

In the instant writ petition General Secretary, Bangladesh Institute of Planners on represen­tative character filed the instant writ petition of (juo-warranto).

 

The petitioner admitted that those respondent Nos. 5-8 were serving in the same Directorate as Junior Planners for at least 15-20 years. It appears from column 3 of the schedule of the Rules of Gazetted Officers (Urban Development Directorate), Recruit­ment Rules, 1974 that it filled up from amongst the junior planners, Senior Research Officers, Assistant Engineers, Economist, Geographers, Sociologists, Statisticians and Research/Planning Officers and column 4 having at least 5 years experience as Junior Planner in the Directorate and, as such, it appears from the admission of both the parties that respondent Nos. 5-8 Assistant Engineer, Sociologist, Geographer and Economist respectively were working for more than 15-20 years as junior planner.

 

It appears that the post of Senior Planner may be filled up by promotion from amongst the Junior Planners, Senior Research Officer, Assistant Engineer, Economist, Geographer, Sociologist, Statistician and Research/Plan­ning Officer having at least 5 years experi­ence as junior planner in the Directorate.

The persons who were Assistant Engi­neers, Economist, Geographer, Sociolo-gist, Statistician and Research/Planning Officer are eligible for promotion in the post of Senior Planner if they have more than 5 years experience in the Directorate. It appears from the gazette notification dated 7-2-2004 that the respondent No. 5 was Assistant Engineer before his promotion. Respondent No. 6 Begum Jebunnesa Khan was Sociologist before her promotion. Respondent No. 7 Md Akhter Hossain was Geographer before his promotion and respondent No. 8 Md Moazzem Hossain was Economist and all of them have served just in the feeder post more than 5 years and, as such, it appears that those respondent Nos. 5, 6, 7 and 8 are eligible for the promotion as Senior Planner having their requisite qualification.

 

Bangladesh Institute of Planners vs. Bangladesh 13 BLC 494.

666

General Clauses Act, 1897

Citation: 15 BLC 633, 12 BLC 578, 15 BLC (AD) 214, 12 BLC (AD) 29, 12 BLC 445, 15 BLC 770, 13 BLC (AD) 44, 11 BLC 60, 12 BLC (AD) 118, 14 BLC (AD) 121

Case Year: 1897

Subject: General Clauses

Delivery Date: 2018-07-02

General Clauses Act, 1897

[X of 1897]

 

Section 3(15)

 

In view of the provisions laid down in sections 2(4), 15, 24, 32,38 and 39 of the Code, sections 3,10,18,20 and 21 of the Act and section 3(15) of the General Clauses Act, 1897 the District Court mentioned in section 44A(1) of the Code means only the Court of the District Judge. In other words certified copy of the decree under section 44A(1) of the Code must be filed in the Court of District Judge. It is pertinent to point out that admittedly the decree-holder under section 44A(1) of the Code filed the certified copy in the Court of District Judge and ultimately it was transfer­red to Court of Joint District Judge for execu­tion. After combined reading of the aforesaid provisions particularly sections 44A(1) and 39(2) of the Code, we are of the view that the joint District Judge has the jurisdiction to execute the foreign decree whose certified copy was filed in the Court of District Judge and subsequently transferred to him. There­fore, the Courts below after appreciating materials on record by rejecting the applica­tions committed no error of law.

 

Al-Amfah Islami Bank Ltd vs Nobel Enterprise 15 BLC 633

 

Section 6

 

Admittedly, both the repeal­ed and the new Ains provide forum of appeal, of course, under two different sections but the provision is for challenging the judgment and decree of the Artha Rin Adalat in appeal. That being the adequate alternative remedy provided under Article 102(2)(a)(ii) of the Constitution, under which the petitioner has come, cannot be attracted. So, the contention of Mr Hoque is not sustainable. The submission of Mr GS Huq as to applicability of section 6 of the General Clauses Act, it is found upon reading the said provision that the said submission is a misconceived one and not tenable in the eye of law.

 

KM Hamdor Rahman vs National Housing Finance & Investments Ltd (Spl. Original) 12 BLC 578.

 

Section 6

 

In the instant case with the specific repeal of the circular dated 11-8-1966 providing no different intention appearing thereto the repealed circular shall have not no force and similarly the incumbent's right, privilege, obligation or liability acquired, accrued or incurred under the existing notifi­cation dated 18-2-1982 shall continue to be guided the new Rules. Thus, upon specific repeal of the circular dated 11-8-1966, the repealing rules of 1982 for promotion, providing no contrary intention, the provision provided in the new rules of 1982 shall operate and the employees shall be governed by 1982 rules.

 

Bangladesh Power Development Board vs Abu Bakar Siddique 15 BLC (AD) 214.

 

Section 6(c)

 

In the background of the facts in the instant case the provision of clause (c) of section 6 or any other provision of section 6 of the General Clauses Act is relevant since right that accrued to the heirs of Sheikh Zumman Ali who was Master Tailor in the Dhaka Central Jail was not denied or refused by the authority, rather the authority paid the benefit accrued to the heirs of Zumman Ali as regard benevolent fund and group insurance as per provision of law as was in force on the date of death of Zumman Ali i.e. on 11-9-1969.

 

Director and Secretary Ministry of Establishment Board of Trustees vs Md Hossain 12 BLC (AD) 29.

 

Section 21

 

Section 7A does not empower the Government to review a decision made by it as a revisional authority. There is no substance in the submissions of the learned Deputy Attorney-General that the Government is empowered under section 21 of the General Clauses Act to alter its own decision changing the penalty from deduction to the lower rank to dismissal on the ground of administrative difficulties and convenience. On careful scrutiny of the Police Officers (Special Provisions) Ordinance, 1976 and other provisions of law it appears that there is no provisions which empower the respondent Government to review its own decision in revisional jurisdiction which affects the vested rights of the petitioner. No one disputes that section 21 empowers the Government to summarise, vary, rescind or alter any decision made by it.

 

Idrish Mahmud (Md) vs Secretary, Ministry of Home, Police Division 12 BLC 445.

 

Section 21

 

It is well settled that malafides goes to the root of jurisdiction and if the impugned action is malafide, the alternative remedy provided by the statute need not be availed of. Neither the Building Construction Act, 1952 nor the fftwt itswl ^1t^, 1995 expressly or impliedly excludes the operation of the principle of "Audi Alteram Partem". As Dr SA Mahmood's right to enjoyment of the case plot was adversely affected by the impugned Memos of the Environment Directorate and the RAJUK; in all fairness and reasonableness, he ought not to have been condemned unheard. To all intents and purposes, in our assessment, the Environment Directorate and the RAJUK's impugned Memos dated 26-8-2009 and 7-9-2009 respectively are unreasonable in the Wednesbury sense. As the said Memos Dated 26-8-2009 and 7-9-2009 are malafide and without jurisdiction, Dr SA Mahmood was not required to approach the Appellate Authority either under Section 14 of under Section 15 of the Building Construction Act, 1952 and he rightly approached the High Court Division directly under Article 102 of the Constitution.

 

Unique Hotel and Resorts Ltd vs Bangladesh 15 BLC 770.

 

Section 26

 

In the instant facts of the case wherein proceeding was pending in. the normal Criminal Court before it was trans­ferred to the Special Divisional Magistrate, Sadar, Noakhali and upon charge-sheet the case was triable by the Sessions Judge, Noakhali and in due process was waiting to be tried as such but for no fault of the appellant the same was transferred to the Court of Special Martial Law, Dhaka at the behest of the complainant respondent No. 4 and was tried there illegally convicting the appellant and two others under section 302 of the Penal Code and sentenced to suffer imprisonment for life, and the appellant was released from jail custody on amnesty after suffering the sentence in accordance with law. But upon an application under Article 102 of the Constitution, the said conviction and sentence was quashed as coram-non-judice by the High Court Division.

 

Mohammad Ullah vs Sessions Judge 13 BLC (AD) 44.

 

Section 26

 

Where the offence of the accused under section 409 of the Penal Code and also under section 5(2) of the Prevention of Corruption Act, 1947 are almost same, then he cannot be tried and convicted of the offence of these sections twice. Where an act constitutes an offence under two or more enactments, then the offender shall not be liable to be punished twice for the same offence under section 26 of the General Clauses Act. So, the argument of the learned Assistant Attorney-General is contrary to law.

 

Kazi Ahammad Bazlul Karim vs State 11 BLC 60

 

Section 27

 

The person who is disputing or trying to deny the statutory presumption of the matter as provided by the provision of section 27 of the General Clauses Act and that the presumption of correctness of genuine­ness of the matter as implied by illustration (f) of section 114 of the Evidence Act is to rebut the said matter or genuineness/ correctness of presumption of fact upon producing evidence. So, letter sent, notice or summons sent by registered post and if returned with the endorsement "refused" shall be accepted as good and due service of notice or summons and the delivery of the letter to the person addressed unless the addressee rebuts the presumption of good service or delivery of letter by adducing evidence.

 

Abdur Rob Mollah vs Shahabuddin Ahmed 12 BLC (AD) 118.

 

Section 27

 

Since the letters including the legal notice were not delivered through registered post indicate suspicious activities in between Shamsul Kabir Humayun Reza of Mirpur with plaintiff MA Hashem as there is no explanation in the plaint how these letter were received by defendant No.l, Shamsul Kabir Humayun Reza of Mirpur. Per Sharif Uddin Chaklader, J (delevering the main judgment)

 

MA Hashem vs Shamsul Kabir Humayun Reza 16 BLC 830,

 

Trustees have got their separate identity and cannot be considered as employees of tfifc Finance and Audit Accounts Cadre.

 

Bangladesh Water Development Board vs Md Quamruzzaman 14 BLC (AD) 121.

667

Government and Autonomous Bodies Employees Benevolent Fund and Group Insurance Ordinance, 1982

Citation: 14 MLR (2009) (AD) 62

Case Year: 1982

Subject: Government and Autonomous Bodies Employees Benevolent Fund and Group Insurance

Delivery Date: 2018-03-15

Government and Autonomous Bodies Employees Benevolent Fund and Group Insurance Ordinance, 1982

 

Section 23— Entitlement to the benefits of Benevolent Fund and Group Insurance is governed by the law inforce at the time when the right accrued— General Clauses Act, 1897— Section 6— Right accrued under the law  is   not   affected   by   the   repeal thereof

In the instant ease the right to Benevolent Fund and Group Insurance accrued under the law of 1969 and as such the respondents were entitled to the benefits under the previous law inforce at the relevant time. They cannot claim the benefit under the subsequent law although the claim was settled during the continuance of the new law. Director and Secretary, Ministry of Establishment and Board of Trustees and others Vs. Md. Hossain and others 14 MLR (2009) (AD) 62.

 

Government policy not to accord permission to new college within the vicinity of 300 yards Government Servants (Discipline and Appeal) Rules, 1985

 

Rule 7(6)— Provides for serving second show cause notice upon the accused in departmental proceedings as to the proposed penalty, as mandatory requirement of law—

Statutory body in the absence of its own disciplinary rules may adopt the Government Servants (Discipline and Appeal) Rules, 1985. But when adopted such statutory body must follow the Rules fully and not partly. In the instant case the Comilla Education Board did not serve the second show cause notice upon the accused with the copy of the enquiry report and was not allowed the statutory period to make his reply which vitiated the proceedings and rendered the penalty of dismissal from service illegal. The learned judges of the High Court Division upon considering the illegalities as mentioned above declared the impugned order passed without any lawful authority and is of no legal effect. Shafiqiil Islam Vs. Board of Intermediate and Secondary Education, Comilla, represented by its Chairman and others 15 MLR (2010) (HC) 345.

668

Government Servant Group Insurance Ordinace, 1969

Citation: 12 BLC (AD) 29

Case Year: 1969

Subject: Government Servant Group Insurance

Delivery Date: 2018-07-02

Government Servant Group Insurance

Ordinace, 1969

[XI of 1969]

 

Section 3

 

In the instant case plaintiffs' predecessor who was an employee of erstwhile East Pakistan died on September 11, 1969 and on the date of death the laws relating to group insurance and benevolent fund were the EP Ordinance No. Ill of 1968 and EP Ordinance No. XI of 1969 and, as such, on the death of plaintiffs' predecessor on September 11, 1969 benefit out of the provident fund and the benefit from the group insurance were to be paid as per the provision of the said two enactments or, in other words, right of the heirs of the deceased Zumman Ali to the benefit out of the provident fund and group insurance were to be governed by the provision of the said two enactments.

 

Director and Secretary Ministry of Establishment Board of Trustees vs Md Hossain 12 BLC (AD) 29.

669

Government Servant's Deputy-Secretary, Joint Secretary, Additional-Secretary and Secretary Promotion Rules, 2002

Citation: 15 BLC (AD) 25

Case Year: 2002

Subject: Government Servant's Deputy-Secretary, Joint Secretary, Additional-Secretary and Secretary Promotion

Delivery Date: 2018-07-02

Government Servant's Deputy-Secretary,

Joint Secretary, Additional-Secretary and Secretary

Promotion Rules, 2002

 

Rule 5(1)

 

It is held and declared that 75% posts of the Law and Justice Wing of the Ministry of Law, Justice and Parliamentary Affairs and the post of Secretary of that Ministry are reserved for the officers belonging to the members of the judicial service and they can be appointed or trans­ferred on deputation and can be appointed to the posts, so reserved by the Nitimala, 2001. Bidhimala, 2002— Rule 5(3) recognised the Drafting Rules 1998 and the Nitimala of 2001 which is evident from the expression in Rule 5(3) and therefore, both Rules of 1998 and Nitimala of 2001 have been kept alive in Bidhimala of 2002 and notification dated 29-11-2007 repealing the Nitimala of 2001 is of no consequence and the High Court Division rightly termed such repeal as not bonafide. To the above posts including that of the Secretary of the Ministry of Law, Justice and Parliamentary Affairs so reserved for members of the judicial service, no members of any other service or cadre or no individual can be appointed, whether on deputation, promotion, contract or otherwise.

 

Bangladesh vs Md Aftabuddin (Retd. District and Sessions Judge) 15 BLC (AD) 25.

670

Government Servants Benevolent Fund Ordinance 1968

Citation: 12 BLC (AD) 29

Case Year: 1968

Subject: Government Servants Benevolent Fund

Delivery Date: 2018-07-02

Government Servants Benevolent Fund

 Ordinance 1968

 

Sections 11, 12 and 23

 

In the instant case plaintiffs' predecessor who was an employee of erstwhile East Pakistan died on September 11, 1969 and on the date of death the laws relating to group insurance and benevolent fund were the EP Ordinance No. Ill of 1968 and EP Ordinance No. XI of 1969 and, as such, on the death of plaintiffs' predecessor on September 11, 1969 benefit out of the provident fund and the benefit from the group insurance were to be paid as per the provision of the said two enactments or, in other words, right of the heirs of the deceased Zumman Ali to the benefit out of the provident fund and group insurance were to be governed by the provision of the said two enactments.

 

Director and Secretary Ministry of Establishment Board of Trustees vs Md Hossain 12 BLC (AD) 29.

671

Government Servants (Conduct) Rules, 1979

Citation: 12 BLC (AD) 169

Case Year: 1979

Subject: Government Servants (Conduct)

Delivery Date: 2018-07-02

Government Servants (Conduct)

Rules, 1979

 

Rule 20

 

The High Court Division in the quoted remark/observation took exception as to the very filing of the application by the petitioner approaching a Member of the Parliament without any sanction from the authority i.e. the Government, treating the same as contrary to Rule 20 of the Govern­ment Servants (Conduct) Rules, 1979 and, as such, recommended for taking appropriate step against the said employees without delay. The said observation of the High Court Division neither amounts to any decision against the petitioner nor any finding against them as guilty of misconduct nor amounts to ex parte decision adversely finding against them without affording any opportunity of being heard.

 

Nurul Ahsan (Md) vs Bangladesh 12 BLC (AD) 169.

672

Government Servants (Discipline and Appeal) Rules, 1985

 

Government Servants (Discipline and Appeal) Rules, 1985


Rule-2(b)

Petitioner was appointedby the Government the Ministry of Finance under the order of the President-respondentNo. 1 the President of the Taxes Appellate Tribunal Division Bench No. 1Dhaka-respondent No. 1 does not come within the definition "authority' northe respondent No. 1 is a superior officer of the appointing authority in thechain of command-the respondent No. 1 had no jurisdiction to start any departmentalproceeding with regard to the conduct of the petitioner-an action has beentaken in the form of departmental proceeding by the respondent No.1 who is notlegally competent to do that. [Para-8 & 9]

Md. Shahjahan HawladerVs. Bazlur Rahman & Anr. 8 BLT (HCD)-223

 
673

Guardians and Wards Act, 1890

Citation: 17 BLC (AD) 77, 16 BLC 791

Case Year: 1890

Subject: Guardians and Wards

Delivery Date: 2018-07-02

Guardians and Wards Act, 1890

[VIII of 1890]

 

Section 17(3)

 

Custody of Children-Within the modern concept of custody and other matters concerning children, there is a requirement that the child should be allowed to express his views. This is a small progression from section 17(3) of the Act, which provides that if the minor is old enough to form an intelligent preference, the Court may consider that preference.

 

Anika AH vs Rezwanul Ahsan 17 BLC (AD) 77.

 

Section 27

 

In view of the provisions of section 359 of the Mohammedan Law and section 27 of the Guardians and Wards Act the father is entitled to sell the property of the minor for its benefit as a legal guardian.

 

Renu Begum vs Khandokar Enamul Mowla 16 BLC 791.

674

Hats and Bazars (Establishment and Acquisition) Ordinance, 1959

Citation: 17 BLC (AD) 106

Case Year: 1959

Subject: Hats and Bazars (Establishment and Acquisition)

Delivery Date: 2018-07-02

Hats and Bazars (Establishment and Acquisition)

Ordinance, 1959

[EP XIX of 1959]

 

Section 2(1)(2)(3)

 

Sub-section (1) of section 2 of the Ordinance has prohibited establishment of any hat or bazar by any person. Sub-section (2) thereof has provided that nothing in sub-section (1) shall prevent the Government or any local authority from establishing any hat or bazar. Proviso to sub­section (2) of the Ordinance has further provided that prior approval of the Deputy Commissioner shall, in the case of a local authority, be necessary. Sub-section (3) of section 2 of the Ordinance has provided that any hat or bazar established in contravention of the provisions of sub-section (1) & (2) including the land on which such hat or bazar is established and all interests therein shall be forfeited to the Government.

 

Md Zahurul Islam vs Deputy Commissioner, Kushtia 17 BLC (AD) 106.

675

Hindu Law

Citation: 14 BLC 300, 16 BLC 180

Subject: Hindu Law

Delivery Date: 2018-07-02

Hindu Law

 

Section 155

 

Sections 145-157 deal with the successions to "Stridhan" under Dayabhaga School of Hindu Law. In view of the provisions laid down in section 155 of Hindu Law, "Stridhana" comes under the class "Yautaka", passes to husband's younger brother, then husband's brother's son and then sister's son. Admittedly plaintiffs are Zamini's husband's brother's son and defendant Nos. 3-4 are Zamini's sister's son. Therefore, plaintiffs having a preferential claim are entitled to inherit the suit property.

 

Golam Reza (Md) vs Sachindra Nath Paul 12 Rrr finx

 

Sections 178, 182, 191 and 205

 

In view of the provisions laid down in section 205 of the Hindu Law where a widow or other limited heir alienates property inherited by her in contravention of the provisions of section 178, the next reversioner, though he has no interest higher than a chance of succession, may institute a suit in her lifetime for a declaration that the alienation is not binding on the reversioner, and if the facts are proved, the Court may pass a decree declaring that the alienation is not valid beyond the lifetime of the limited heir.

 

Ananta Kumar Biswas vs Ram Krishna 14 BLC 300.

 

Section 182

 

The case of the appellant as is pleaded cannot be measured on the scale of legal necessity. It cannot still be denied that the defendant No.2 is a poor widow left with the small parcel of land for her maintenance and all the incidental expenses of life. Respondent has not come with a case duly proven that defendant No.2 had other property to support her many different expenses at her old age. All the impractical and irrational excuses for sale apart, she needed money and the only source again remained to be the same small piece of land. The High Court Division is in agreement with the learned Sub-ordinate Judge to the extent that the land sold under the deed of 1990 was sold for legal necessity. But that does not mean that the disposal of almost the entire property on the excuses as were shown, by two subsequent deeds can be called disposal for legal necessity.

 

Motiur Rahman Bahadur vs Hemanta Kumar Shill 16 BLC 180.

676

Hindu Minority and Guardianship Act, 1956

Citation: 16 BLC 37

Case Year: 1956

Subject: Hindu Minority and Guardianship

Delivery Date: 2018-07-02

Hindu Minority and Guardianship Act, 1956

 

 

Section 6

 

The statements simply prove that mother Nibedita Roy Chowdhury transferred the property as a natural guardian of the benefit of her minor son. As such, that the findings of the trial Court in this regard are contrary to the law and also perverse for misreading of evidence on record.

 

Asgar AH Mia vs Bangladesh 16 BLC 37.

677

Import Policy Order, 2009-2010

Citation: 16 BLC 367

Case Year: 2009

Subject: Import Policy

Delivery Date: 2018-07-02

Import Policy Order, 2009-2010

[XXXVI of 1984]

 

Paragraph No. 50

 

The respondents are left with no choice but to admit that the films in question arrived before the changed rules were brought into the vougue, it goes without saying that decision was barren of lawful authority. Obviously there is no scope to apply ex-post-facto law. The rule that existed at the time the films were imported, must be the governing law-that is the universally recognized and endorsed proposition of law.

 

Iftekharuddin vs Bangladesh 16 BLC 367.

678

Import Policy Order of 1997 to 2000

Subject: Import Policy Order of 1997 to 2000

Delivery Date: 2018-07-02

Import Policy Order of 1997 to 2000

 

Articles 18 to 21

 

The appellants have asserted in the affidavit-in-opposition that the authority has exercised its discretion under rule 21 of the Import Policy relaxing the rule 20 thereof in respect of an import of the reconditioned car brought for personal use and 10 reconditioned cars for the use in a Government project which are above 5 years old and not for any commercial purpose as in the case of the writ petitioner. The authority concerned has classified these 2 imports for personal one separate from the commercial imports for profit and the same could not be treated as discriminatory offending the equality clause in Article 27 of the Constitution.

 

Chief Controller, Import and Export vs Md Faruk Ahmed 44.

679

Income Tax Ordinance, 1984

Citation: 13 BLC 325, 16 BLC 557, 16 BLC 362, 17 BLC 282, 17 BLC 539, 14 BLC (AD) 145, 14 BLC 690, 14 BLC 682, 14 BLC 239, 17 BLC 282, 15 BLC 472, 13 BLC 593, 11 BLC 587, 15 BLC 449, 14 BLC 593, 14 BLC (AD) 113,

Case Year: 1984

Subject: Income Tax

Delivery Date: 2018-07-02

Income Tax Ordinance, 1984

[XXXVI of 1984]

 

Sections 2(14) and 29(1) (iii)

 

Admit­tedly, the respondent assessee advanced some amount out of the borrowed money to their sister concern. The sister concern will undoubtedly, come under the definition of business under section 2(14) of the Ordi­nance. It is not the case of the department that the interest has not been paid on the amount which was advanced to the Star Coconut Oil Ltd. The first part of clause (iii) clearly speaks about any interest paid. It is not the case of the department that the interest on the amount advanced to the sister concern has not been paid. Interest paid on the advance taken from Bank shall be deducted from the amount of income even though part of such advance is used for the. business of a sister concern.

 

Commissioner of Taxes vs Rubel Steel Mills Ltd 13 BLC 325.

 

Sections 2(15), 28 and 32(7)

 

The provision of section 32(7) of the Ordinance gives a right in favour of a particular group who are dealing with stock market and engaged in share business. Such right cannot be circumvent by giving any interpretation inducting some provisions of law in the same Ordinance. The learned Member has righty opined that the income from purchase and sale of stocks and share of public company listed with a stock exchange is non-taxable.

 

Oman Bangladesh Leasing and Finance Limited vs Commissioner of Taxes 16 BLC 557

 

Sections 19(1) and 93

 

The DCT, upon re-assessment, and the Appellate Tribunal, on appeal, were not legally justified in disallowing the loan as shown by the assessee in the mentioned assessment years and accordingly both the DCT and the Appellate Tribunal were wrong in adding them as income from other sources under section 19(1) of the said Ordinance. In the result, answer to the 2nd question under reference, namely question No. 18(111) is in the negative, and goes in favour of the applicant.

 

HRC Syndicate Ltd vs Commissioner ofTaxes 16 BLC 362.

 

Sections 19(15) (a) and 35

 

Merely because a particular method of accounting was followed and audited by Chartered Accountant Firm the same cannot be said to be sacrosanct when the expending were not verifiable.

 

Chittagong Urea Fertilizer Ltd vs Commissioner ofTaxes 17 BLC 282

 

Sections     29(IV)(VI)     and     42

 

Unabsorbed depreciation of the earlier years can be adjusted not only against the income from business or profession but also against the income from any other source.

 

Chittagong Urea Fertilizer Ltd vs Commissioner of Taxes 17 BLC 539.

 

Section 29(1)

 

Per MM Ruhul Amin J : (agreeing)—The basic and essential conditions on which Zakat becomes obligatory are not at all applicable to the petitioner, and, as such, the petitioner bank is not required to pay Zakat and hence not entitled to get exemption under section 29(1) of the Income Tax Ordinance, 1984 on account of payment of Zakat The review petitions are accordingly, liable to be dismissed.

 

Islami Bank Bangladesh Ltd vs Commissioner of Taxes 14 BLC (AD) 145.

 

Section 29(1)(XXVII)

 

Per Justice Md Ruhul Amin CJ (delivered the main judgment) —The payment as claimed by the petitioner on the head of 'Zakat' on behalf of the depositors or account holders for flourishing of the business has no nexus to carry on his business and, as such, the exemption claimed in respect of the amount said to have been paid on the head 'Zakat' does in no way come within the provision of section 29(1) (XXVII) of the Ordinance. Such payment, termed as 'Zakat', by the corporate body, on behalf of its depositors/customers, cannot be considered to have been made towards 'Zakat' which said to have led to flourishing of its business and for that cannot be considered covered by the provision of section 29(1)(XXVII) of the Ordinance.

 

Islami Bank Bangladesh Ltd vs Commissioner of Taxes 14 BLC (AD) 145.

 

Section 29(1)(XXVII)

 

Per MA Matin } : (agreeing)—Since the petitioners are under no obligation to pay any zakat as juridical persons they are also not authorised to pay zakat on behalf of their account holders and therefore, they are not entitled to any exemption of taxes from their income within the meaning of section 29(1)(XXVII) of the Income Tax Ordinance, 1984.

 

Islami Bank Bangladesh Ltd vs Commissioner of Taxes 14 BLC (AD) 145.

 

Section 30A

 

In a Taxing Statutes, one has to look merely at what is clearly said. There is no room for any intendment. In fiscal law nothing is to be read in, nothing is to be implied. In the process of assessment, the Income Tax Authority may reject any allowance and/or deduct any addition claimed under the Ordinance but he must record reason for such rejection or deduction. Such recording of reason is now a statutory obligation after insertion of section 30A of the Ordinance, 1984. Thus, after the insertion of the above provision of law the Deputy Commissioner of Taxes including the Appellate Authority, under the Ordinance, is also under the statutory obligation to specify reasons in maintaining or upholding any disallowances or deductions made by the DCT.

 

Glaxo Smith Kline Bangladesh Ltd vs Commissioner of Taxes 14 BLC 682.

 

Sections 30A and 35(1)(3)

 

It appears that the assessee-applicant has complied with the requirement of section 35(1) of the Ordinance and there is no finding, whatso­ever, that the method of accounting employed by the company is not regularly employed or that the method is such that the true income of the assessee cannot be properly deduced therefrom. Thus, in the absence of any such finding of the DCT, the authority was not at all authorised in law to reject the accounts of the assessee and affirming the order of the DCT. It appears that the authority acted beyond the scope of section 30A of the Income Tax Ordinance, 1984. Accordingly, there is substance in all these three reference applications.

 

Chand Textile (Spinning) Mills Ltd vs Commissioner of Taxes 14 BLC 690.

 

Sections 30A & 35(4)

 

In the instant case, there is no observation given by the DCT that he has found any defect in the method of accounting employed by the assessee-applicant or there is any defect in the account itself. He simply opined that the expenditure was not fully supported by evidence and on that account he has resorted to assess under the proviso of section 35(4) of the Ordinance but he has not arrived at any positive finding that from the accounts submitted by the assessee he is not in a position to properly deduce the income therefrom nor has he rejected the books of accounts of the assessee. It is held that the Income Tax Authority acted beyond the scope of section 35(4) read with section 30A of the Income Tax Ordinance, 1984. Accordingly, there is substance in the reference application.

 

Glaxo Smith Kline Bangladesh Ltd vs Commissioner of Taxes 14 BLC 682.

 

Sections 31 and 32

 

On the facts of the case at hand, the Assistant Commissioner of Tax was wrong first to allow deduction under section 32(6)(a) of the Ordinance and second, in respect of the value of one flat only. The Appellate Tribunal therefore fell in error of law in upholding such decision. The value of five flats that is Taka 80,00,000 must be deemed to have been invested by the assessee in the acquisition of said five flats for residence and further Taka 3,00,000 in the purchase of another flat. This sum or money 83,00,000 must be deducted from the aforesaid capital gains of Taka 1,10,60,000. Capital gains of the assessee would come to Taka (1,10,60,000 - 2,80,000 + 83,00,000) = 24,80,000 which would be assessable to tax only.

 

Zebunnessa Karim vs Commissioner of Taxes (Statutory Original) 14 BLC 239.

 

Section 35

 

Section 35 of the Ordinance has made it mandatory upon the Deputy Commissioner of Taxes to accept the audit account if the same is found to have been maintained in a particular method.

 

Chittagong Urea Fertilizer Ltd vs Commissioner of Taxes 17 BLC 282.

 

Sections 35, 83,  159  and  160

 

The moment Tribunal itself found that the assess­ment of DCT suffers from an inherent defect, it should have proceeded under section 159(2) for the purpose of ensuring the real cause of justice though the Tribunal allowed the appeal in part.

 

Asean Sea Food Ltd vs Commissioner of Taxes 15 BLC 472.

 

Sections 35(3) and 160

 

The appli­cant company in compliance with the provisions of sub-section (3) of section 35 of the Income Tax Ordinance furnished copies of Trading Account, Profit and Loss Account, and the Balance Sheet in respect of the income certified by Chartered Accountants. Therefore, the Tribunal was not justified in maintaining the disallowance in the manner as stated in the order.

 

United Insurance Company Ltd vs Commissioner of Taxes 13 BLC 593.

 

Sections 48, 52, 58, 62, 82C and 185(1)

 

There is no hesitation to arrive at a finding that in issuing the clarification dated 4-4-2002 as evidenced by Annexure 'A(l)' the Board has outstepped their authority and has made the SRO dated 6-1-2002 as evidenced by Annexure 'A' to the application retrospective in operation though admittedly it is prospective. Thus, the clarification issued by the Board is absolutely contrary to the contents of the SRO as it clearly shows that it is prospective in operation and also appears to be without jurisdiction as it affects the vested right of the petitioners.

 

Mir Akhtar Hossain Ltd vs Chairman, NBR 11 BLC 587.

 

Sections 44(4) (b) and 52N

 

The SRO issued under sub-section (4) clause (b) of section 44 of the Income Tax Ordinance, 1984 never stands for exemption of tax to supplier of power on rental basis, rather it stands for private sector power generation company. Accordingly, the exemption certificate issued by the respondent No.4 (NBR) was cancelled. The above action taken by the authority finds support from proviso to Rule 16 of the Income Tax Rules, 1984. In no way Respon­dent No.4 (NBR) can issue such SRO (Annexure-B to the petition) ignoring the provision laid down in clause (a) of sub­section (4) of section 44 of the Ordinance, 1984. With this view of the matter where the very birth of exemption certificate on the basis of SRO is found illegal its cancellation needs no show cause notice as alleged by the petitioner.

 

Shahjibazar Power Co. Ltd vs Bangladesh 15 BLC 449.

 

Section 83

 

Admittedly, the assess­ments of the lenders in respect of assessment years 1990-1991 have been completed and accepted by the concerned DCT 14 years ago under section 83 of the said Ordinance. Now their IT records have been re-examined and declared illegal exparte to hold that the loans as shown by the assessees are fictitious. This kind of practice is not only unwarranted but also illegal, the same being clear violation of the principle of natural justice.

 

HRC Syndicate Ltd vs Commissioner of Taxes 16 BLC 362.

 

Section 158(1)(2)

 

The impugned order in refusing the prayer for waiver from payment of the requisite tax by the learned Member of the Board on the ground that at the time he had no discretion to exercise and consider such prayer, cannot be said to have affected in any way the right of appeal of the petitioner and therefore, cannot be said to be ex-facie bad, illegal and/or unauthorised and, as such, of no legal effect.

 

BRAC vs National Board of Revenue 14 BLC 593.

 

Section 158(2)

 

The provision of sub­section (2) of section 158 of the Income Tax Ordinance as amended by the Finance Act, 2000 will be applicable to the pending cases. BRAC vs National Board of Revenue 14 BLC (AD) 113.

 

Article   9(2)   of   thrid   schedule

 

Unabsorbed depreciation of the earlier years can be adjusted not only against the income from business or profession but also against the income from any other source.

 

Chittagong Urea Fertilizer Ltd vs Commissioner of Taxes BLC 539.

680

Industrial Relations Ordinance, 1969

 
Industrial Relations Ordinance, 1969
[XXIII of 1969]
 
Section 3—
The corporation has a right to frame its own Rules concerning the condition of employment of workers as provided under the proviso to section 3 of the Act—Rules not found invalid—Labour Court travelled beyond the pleading of the party.
Brigadier Choudhury Khalequzzaman Vs. Sk. Shahabuddier 42 DLR 293.
 
Section 26—
The Labour Court has no jurisdiction to deteramine the quauteem under section 26—Labour Court can not punish an alleged offender to failure to comply with an indefinate order.
Brigadier Choudhury Khalequzzaman Vs. Sk. Shahabuddin 42 DLR 293.
 
Section 34—
The complainant workmen may have the quantum of termination benefit fixed or determined by the process of law may be by filing an application under section 34 of the Industrial Relations Ordinance—Labour Court is not to decide the said quantum under section 26 of the Standing Orders Act.
Brigadier Choudhury Khalequzzaman Vs. Sk. Shahabuddin 42 DLR 293.
 
Sections 36(3) & 64—
Labour Court and a Magistrate, 1st Class, having jurisdiction in the relevant matter shall have concurrent jurisdiction to try an offence punishable under the Industrial Relations Ordinance. Under section 64 of the Ordinance a Magistrate 1st Class, has also been invested with power to try any offence under this Ordinance. The decision reported in 1985 BLD (AD) 278 is not applicable in the facts of the present case.
Kamaluddin Chowdhury Vs. Mashiudowllah 43 DLR 137.
 
681

Industrial Relations Rules, 1977

Citation: 12 BLC 502,

Case Year: 1977

Subject: Industrial Relations

Delivery Date: 2018-07-03

Industrial Relations Rules, 1977

 

Rule 10

 

In this instant case, mere direction was sought for conducting an enquiry for ascertaining the legality or otherwise of the composition and locus standi of the Executive Committee of the respondent No. 4, Coats Bangladesh Ltd and for taking action as per terms of section 13 of the Industrial Relations Ordinance, 1969 read with Rule 10 of the Industrial Relations Rules, 1977. Thus the respondent Nos. 2 and 3 were directed to conduct an enquiry for taking necessary steps as per section 13 of the Industrial Relations Ordinance, 1969 read with rule 10 of the Industrial Relations Rules, 1977. Accordingly, the Rule is made absolute. The respondents were further directed to decide the matter within 30 days from the date of receipt of this order as prayed for by the learned Advocate for the respondent No. 4.

 

Coats Bangladesh Ltd vs Secretary, Ministry of Labour and Employment 12 BLC 502.

682

Interpretation of Statutes

Citation: 17 BLC (AD) 10, 11 BLC (AD) 113, 15 BLC 585, 16 BLC 150, 15 BLC 585

Subject: Interpretation of Statutes

Delivery Date: 2018-07-03

Interpretation of Statutes

 

It is the cardinal rules of interpretation that interpretation of any provision in isolation without taking into consideration the allied provisions is not permissible.

 

Nazimuddin (Md) vs Government of Bangladesh 17 BLC (AD) 10

 

An act done in violation of the law or in disregard of the Rule would not be clothed with legality only because, of lapse of time or for not taking exception to the act so done in disregard of the law and the Rules, rather when challenge is made to the act done in disregard of the law and the Rules then the authority which is competent to put the person or the body acting in violation of law and the Rules on the right track is quite competent to make direction to the person of the body that acted or is acting upon violation of the law and the Rules to do or perform its function or act in due compliance of the law and the Rules.

 

Election Commission vs Alhaj Advocate Md Rahmat AH, MP 11 BLC (AD) 113.

 

The cited decisions show that the preamble cannot control the meaning of the expression when its meaning is clear and unambiguous, but if the meaning is not clear and unambiguous, the preamble can be useful in finding out the true meaning of the expression in question,

 

SN Kabir vs Fatema Begum 15 BLC 585.

 

Islami Bank, Operation Manual No.l

 

Clause-11.3

 

The defendant bank appears to have given a total go by to the instructions of its own Operation Manual in opening the disputed account. And it can fairly be concluded that the disputed account was opened in apparent violation of the prevailing rules.

 

Islami Bank Bangladesh Ltd. vs Agrani Bank 16 BLC 150.

 

Land Reforms Ordinance

(X of 1984)

 

Section 5

 

There is no ambiguity in the language of section 5 of the Ordinance. It is to be read as it is. By importing or adding the word 'rural' or 'urban' in the section it need not be interpreted otherwise. For the purpose of applicability of this section in the entire part of the country the legislature did neither used the word rural or urban nor used the word agricultural land or non-agricultural land in the section. So, we have found that by making the provision of section 5 acquisition of the 'immovable property' by benami transaction has been prohibited. The plaintiff had no legal title in the suit property to get declaration that the defendant is benamdar and he has acquired the property through benami transaction and, as such, the suit is barred under section 42 of the Specific Relief Act. There is no reason to interfere with the judgment and decree passed by the trial Court rejecting the plaint under Order VII rule 11 (d) of the Code of Civil Procedure.

 

SN Kabir vs Fatema Begum 15 BLC 585

683

Limitation Act, 1908

Citation: 13 BLC 365, 13 BLC 353, 17 BLC 467, 11 BLC 312, 11 BLC 334, 12 BLC 745, 12 BLC 473, 14 BLC 407, 14 BLC 855, 15 BLC 141, 15 BLC 611, 13 BLC 817, 13 BLC 86, 11 BLC 621, 12 BLC 16, 11 BLC (AD) 265, 14 BLC 204, 16 BLC 897, 17 BLC 605, 13 BLC 365, 13 BLC 86,

Case Year: 1908

Subject: Limitation Act

Delivery Date: 2018-07-03

Limitation Act, 1908

[IX of 1908]

 

Section 3

 

It is admitted that the respondents Badaruddin Ahmed, Mosleh-uddin Ahmed and Feroza Begum as plaintiffs instituted Title Suit No. 279 of 1970 in the Court of the then learned Sub-ordinate Judge, First Court, Dhaka. That suit was contested by the defendants and the same was dismissed on contest on 24-8-1971. Against that judgment and decree the present res­pondents filed First Appeal No. 68 of 1972 before this Court and the impugned judgment and decree was set-aside and the suit was sent back on remand for fresh trial. After receiving the record by the trial Court, both the parties filed fresh power. Thereafter, on 24-9-1984 the suit was decreed ex parte. The present appellant has filed this Title Suit No. 94 of 1993 (renumbered as Title Suit No. 139 of 1994) long after three years and the same is hopelessly barred by limitation. So, the learned trial Court rightly dismissed the suit.

 

Bangladesh Railway vs Sajeda Begum 13 BLC 365.

 

Section 5

 

The petitioner has shown sufficient cause for condoning the delay as his explanation for such delay appears to be satisfactory, bonafide and genuine. Thus, the High Court Division has condoned the delay of 4968 days in preferring the appeal.

 

Nazim vs State 13 BLC 353

 

Article 5

 

Government's difficulty should be decided more closely and carefully as to condonation of delay to give relief to the Government which is a mere concept and it has to depend on others in making decision or taking action. Government's interest is nobody's interest and it is also everybody's interest.

 

Divisional Forest Officer, Mymensingh vs Md Shamsuddin Khan 17 BLC 467.

 

Section 5

 

The delay caused is beyond the control of the appellants. It appears that the officials of the Solicitor office and the Attorney-General office are liable for the cause of delay but the appellants should not be penalised for the same because if the delay is not condoned the appellants will be deprived once and for all of the chance of appeal to fight out their claim. Accordingly, the delay of 243 days was condoned.

 

Forest Department & others vs Md Shariful Alam 11 BLC 312.

 

Section 5

 

It appears that the grounds taken in the application for setting-aside abatement due to ignorance of the date or news of death of the sole defendant or that the plaintiff being the government has, allegedly little chance of knowledge about any person's death or the news of death was not brought to the notice of the Court by the defendant in due time are not at all sustainable in law. Moreover, by adducing PW 1, the Government pleader's clerk who is not the appropriate witness, the plaintiff unsuccessfully tried to substantiate as well as substitute the reasons for not coming before the Court within the statutory period and there being no application for condonation of delay under section 5 of the Limitation Act as required under rule 9(3) of Order XXII, the application for setting-aside abatement or the application for substituting the heirs of the sole deceased defendant is not maintainable in the eye of law.

 

Gopal Chandra Shil vs Government of Bangladesh 11 BLC 334.

 

Section 5

 

The petitioners could not give satisfactory explanation for the inordinate delay of 729 days or 692 days or 831 days and that the petitioners miserably failed to prove the delay of each and every day. There is no merit in the Rule.

 

Latifa Khatun vs Md Idris 11 BLC 353.

 

Section 5

 

On perusal of the application it appears that no valid and cogent ground for condoning the long delay is made out in the application. In the application filed under section 5 of the Limitation Act the petitioner is required to explain each day's delay to the satisfaction of the Court. The application for condonation of delay of 679 days is rejected. District Accounts Officer,

 

 Narail vs Niranjan Chandra Biswas 12 BLC 745.

 

Section 5

 

No explanation for delay in typing the application or swearing the affida­vit could at all be offered. It has further been alleged that the certified copy was prepared on 3-2-99 but the learned Government pleader transmitted the record to the Addi­tional Deputy Commissioner (Revenue), Mymensingh on 15-3-99 but no explanation could be offered as to why the learned GP took about a month and a half in sending the record from his office to the office of the Deputy Commissioner (Revenue). The judg­ment and decree were signed respectively on 6-9-98 and 9-9-98 by the learned lower appellate Court but the application for rectified copy was made on 18-11-98 but no explanation whatsoever could be offered for the delay of two months and 12 days in applying for the certified copy. The petitioner could not offer any satisfactory explanation for the delay and, as such, there is no reason to condone the same in filing the revisional application.

 

Government of Bangladesh represented by DC vs Md Abdur Rouf 12 BLC 473.

 

Section 5

 

In the instant case, it was categorically stated that the delay was due to wrong advice of the learned Advocate and that it appeared from the records of case below that the mandatory provisions for issuance of summons under the BSRS Order was not complied with and no notice was issued upon the opposite parties of the case, after receipt of the case records from the Artha Rin Adalat. Therefore, the ex parts disposal of case under the BSRS Order, 1972 as made was not in accordance with law and the learned District Judge ought to have considered such special facts in passing the impugned order rejecting the application for condonation. The view that the learned District Judge proceeded with the application for condonation on wrong approach and thereby arrived at his wrong decision, which has occasioned failure of justice.

 

Meer Niaz Md vs Bangladesh Shilpa Rin Sangstha 14 BLC 407.

 

Section 5

 

There had been unusual delay in lodgment of first information report. No explanation had been offered in first information report for such a long and unusual delay in laying first information report. This long and unusual delay throws a serious doubt in the truthfulness of prosecution case in abridgment of convict-appellant in the felony allegedly committed by him.

 

Joarder Akmal Hossain vs State 14 BLC 855

 

Section 5

 

Court notes that the impugned judgment and decree was signed on 1-4-1998 and 13-4-1998 respectively and the petitioner applied for certified copy on 4-10-2004. There is absolutely no explanation whatsoever of the delay in between this period. Therefore, the element of negligence or inaction on the part of the authorities concerned is not ruled out at all and on the plea of liberal interpretation, the law of limitation cannot be set at naught. Thus, no ground is made out for condonation of delay in filing the instant revisional application after a lapse of 2825 days.

 

Bangladesh vs SM Amina Khatun 15 BLC 141

 

Section 5

 

Even if "we consider the entire explanation given in the supplementary-affidavit as true and genuine, then also we do not find any explanation for the period from 23-4-2008 up to 27-8-2008, that is, about 4 months. This delay of 4 months has neither been sought for nor explained. It appears from the aforesaid facts that condonation of delay has been sought for in piecemeal basis. Application was filed on 27-8-2008 and supplementary-affidavit was filed on 1-12-2008 which shows how much negligent and careless the petitioner was in the matter of prosecuting the appeal.

 

Court of Wards Bhawal Raj Estates vs Eastern Housing Ltd 15 BLC 611.

 

 Sections 5 and 14

 

If the explanation offered for condonation of delay does not smack of malafide the Court must show utmost consideration to the suitor. In Nand Kishore vs State of Punjab Supreme Court of India under peculiar circumstances of the case condoned the delay in approaching the Court after about 31 years. In N. Balakrishan vs M. Krishna Murthy Supreme Court of India held: The purpose of Limitation Act was not to destroy the rights. It is founded on public policy fixing a life span for the legal remedy for general welfare. Corollary thereof is that both Rules arising out of petitions for condonation of delay carry substance. Both Rules succeed. Rules are made absolute. Delay of 4198 days in presenting Civil Revision Petitions stand condoned.

 

Golam Hossain vs Abdus Sukur Bhuiyan 13 BLC 817.

 

Section 18

 

Principle on which section 18 is founded is that where a remedy is given on the ground of fraud, the right of the party defrauded is not affected by the lapse of time so long as he remains in ignorance of the fraud. Evidence, materials on record and fact and circumstances of the case manifest that fraud had been applied in objecting service of summons upon plaintiff-opposite-party and by means of fraud he was kept in darkness of pre-emption proceeding against him.

 

Momin Miah vs Md Shafiullah Paiwari 13 BLC 86

 

Section 26(2)

 

The plaintiff with a view to prove easement right had to prove their exclusive possession for more than 60 years in view of section 26(2) of the Limitation Act. The State Acquisition and Tenancy Act came into operation on and from the 16th May 1951. So, the question of creating easement right does not arise in view of section 26(2) of the Limitation Act. Both the Courts below have rejected the plaintiff's claim of easement right. On perusal of the evidence of the PWI it appears that he admitted that the defendant No.l was allowed to possess the suit land in lieu of Taka 11,000. That being the admission of the PW 1 it can be believed that the plaintiffs are not in possession. Moreover, the plaintiff examined in total 5 PWs but they have miserably failed to prove the possession of the public or of the villagers of Syedpur. In view of the above, the Government cannot be restrained by an order of injunction as prayed for.

 

Asad AH Pmmanik vs Bangladesh 11 BLC 621.

 

Section 28

 

In the instant case, on perusal of the evidences on record it appears that there is no such evidence adduced by the plaintiff asserting his possession expressly or impliedly in denial of the title of true owner. The plaintiff himself, on oath, at the trial, adduced evidence but had failed to adduce any evidence in support of his claim and acquiring title by adverse possession. There is no averment made in the plaint that the plaintiff entered into the suit land with hostile assertion of his title and continued his possession adversely against the defendant. It is his simple case that he entered into the suit land on the strength of an oral agreement and paid the full consideration money. If the starting of his possession was found on the basis of agreement, then the plaintiff lawfully went to possess by virtue of a contract for sale. But that cannot be declared adverse possession.

 

Abdul Gani Master vs Ayub All Mollah 12 BLC 16.

 

Section 28

 

The plaintiffs' case is that they were in possession of the suit land by purchase from one Mrs Monju Rejina D' Costa but they were dispossessed from the suit land by the defendants. But they could not prove their possession and alleged dispossession by the defendants as claimed by them and that the plaintiffs must prove that the suit was brought within 12 years from the alleged dispossession. Since the plaintiffs could not prove that the suit was brought within 12 years from the date of alleged dispossession, the suit was found to be hopelessly barred by limitation.

 

Delwar Hossain Akter (Md) vs Md Nazrul Islam Khan andothers 11 BLC (AD) 265.

 

Section 28

 

Admittedly the plaintiff is a co-sharer in the 'C schedule land with the defendants. The High Court Division has therefore erred in law in holding that the plaintiff acquired title to the said 'C' schedule land by adverse possession in failing to appreciate the legal position that the plaintiff being a co-sharer in the land along with other co-sharer defendants could not acquire title through adverse possession, inasmuch as his possession in the land, if any, is not exclusive, Possession of a co-sharer in a joint land for even more than 12 years shall not constitute adverse possession as against other co-sharers.

 

Probir Kumar Rakshit vs Abdus Sabur U BLC (AD) 28.

 

Section 28

 

The learned Sub-ordinate Judge, Nawabganj ought to have discussed and considered the material facts of the case that the defendant has been in possession of the suit land more than 60 years ago without any disturbance and the RS Khatian also prepared in the name of the defendant which creates a claim of right of adverse possession.

 

Syeda Bibi vs Helaluddin 14 BLC 204.

 

Section 28

 

In the instant case since the plaintiff opposite-party have been in possession on the basis of deeds, rent receipt and filed record which are though defective title still they have acquired title on the basis of continuous possession in the suit land for more than 12 years. A person remains in possession of the land on the basis of defective title for more than 12 years can acquire title. A person in possession of the land can only be dispossessed by another having better title.

 

Bangladesh vs Abdul Aziz 16 BLC 897

 

Sections 30 and 31

 

The dispute of short delivery involves carriage of goods through the high seas under the Provision of Carriage of Goods by Sea Act, 1925 and the Bill of Lading Act 1865. Therefore the decision made in the light of section 30 and 31 of the Limitation Act, 1908 is not attracted to this case since the provision of Limitation Act, 1908 is not applicable as the Bill of Lading which acts in one aspect as contract of Carriage stipulated the applicability of the aforesaid Act which is a special substantive law of Limitation as it provided for extin­guishment of the liability of the Carrier for short delivery due to failure of non-service of notice within three days.

 

Hasan Vegetable Oil Mills Ltd vs MT Sceptre 17 BLC 605

 

Article  95

 

It is admitted that the respondents Badaruddin Ahmed, Mosleh-uddin Ahmed and Feroza Begum as plaintiffs instituted Title Suit No. 279 of 1970 in the Court of the then learned Sub-ordinate Judge, First Court, Dhaka. That suit was contested by the defendants and the same was dis­missed on contest on 24-8-1971. Against that judgment and decree the present respondents filed First Appeal No. 68 of 1972 before this Court and the impugned judgment and decree was set-aside and the suit was sent back on remand for fresh trial. After receiving the record by the trial Court, both the parties filed fresh power. Thereafter, on 24-9-1984 the suit was decreed ex parts. The present appellant has filed this Title Suit No. 94 of 1993 (renumbered as Title Suit No. 139 of 1994) long after three years and the same is hopelessly barred by limitation. So, the learned trial Court rightly dismissed the suit.

 

Bangladesh Railway vs Sajeda Begum 13 BLC 365.

 

Articles 95 and 120

 

Learned Appel­late Judge found exception with the finding of learned Trial Judge on the point of limitation and held that Trial Judge was not at all justified in holding the suit to be barred by limitation. No exception can be taken to the decision arrived at by learned Appellate Judge. Date of knowledge had been stated to be on 1-4-1995 and suit was filed on 23-1-1996 which is well within the period of limitation fixed by law. Articles 95 and 120 of The Limitation Act can be conveniently pressed into service in this regard. Hence suit cannot be said to have been barred by limitation.

 

Momin Miah vs Md Shafiullah Patwari 13 BLC 86

 

Article 113

 

The payment of compen­sation should reflect the benefit that the recipient would obtain by investing that sum of money had it been paid in due time. There is a general right of performance within a reasonable time. Approximately twenty years have elapsed from 1992 when there was no further impediment in the way of completing the sale. On the basis that money put into long term investment would, more or less, double in five years the seller is entitled to receive taka two crores by way of compen­sation.

 

Mahua Khair vs Amena Begum All Ispahani 17 BLC (AD) 139

 

Articles 113 and 120

 

A suit for specific performance of a contract of sale of property is undoubtedly covered by Article 113 of the Limitation Act and limitation runs from the date of refusal to perform the obligation or his part of the contract.

 

Lutfun Nessa vs Mamataz Begum 11 BLC 200.

 

Article 113

 

The plaintiff did not make any demand for payment prior to 1st October, 1977 to the defendants. If the defendants fail to make payment within the stipulated time, the plaintiff is required to file the suit for recovery of the outstanding loan with interest within a period of three years from the date of expiry of the last date of payment of installments as per Exhibit 'Cha'. The last date for payment expired on 30th June 1973 and the period of limitation reckoned from that date which expired on 30th June 1976. Therefore, the plaintiffs claim for recovery of money is hopelessly barred by limitation. The learned Sub-ordinate Judge, in the premises, is perfectly justified in dismissing the suit by holding that the suit is barred by limitation.

 

Agmni Bank Ltd vs Habib Oil Mills (Bangladesh) Ltd 15 BLC 607

 

Article 120

 

On perusal of the cross examination of the DW 1 it appears that the plaintiff gave suggestion about certain litigation of 1973-74 which clearly indicated that the plaintiff had knowledge about the MRR Khatian appearing in the name of the defendant in 1973-74 but the suit admittedly instituted in 1982 showing knowledge on 2-3-1981 and the evidence and suggestion has clearly indicated that the suit was instituted after about 9 years and thereby, the suit is barred by limitation.

 

Golam Mowla vs Abdul Hashem 15 BLC 85

 

Article 120

 

The proposition of law is well settled that the limitation will start not from the date of publication of record of right, so long any dispute as to title and possession is not raised and in the present case it is found from the record that the title of the plaintiffs was threatened in the year 1977 and the suit has been filed in 1978 and thus, the suit is not barred by limitation.

 

Hachina Begum vs Abdul Mannan 15 BLC 625

 

Article 120

 

Suit had been filed on 30-5-1995 i.e. within one month of accrual of cause of action of Suit. Suit was laid very much within the period of limitation prescribed by law and suit cannot be said to be barred by limitation. Knowledge of sale deeds in name of predecessor of first-third defendants cannot be the starting point of limitation in laying a suit for declaration of title and for partition. It is settled law that plaintiff is to institute a suit for declaration of title within six years of the date when the right of plaintiff is invaded by other side i.e. defendants. Article 120 of Limitation Act can profitably be .pressed into service in this regard. Finding reached by learned Trial Judge that suit stood barred by limitation is based upon total misconception of law and said decision is liable to be turned down.

 

Kartik Chandra Mondol vs Zoynal Dewan 12 BLC 652.

 

Article 134

 

The High Court Division also held that since the transactions are vitiated by fraud, the suit would be governed by Article 134 of the Limitation Act and the starting point of limitation would be 12 years from the date when the transfer became known to the present plaintiff.

 

Parveen Sultana vs Sahera Khatun 12 BLC (AD) 175.

 

Article 143

 

In the instant case it is apparent that plaintiffs claim of redemption did not become barred by limitation during the period as mentioned in Article 4 of the Order. The plaintiffs' right to file suit seeking redemption became timebarred on 26-12-1988. In that state of the matter the contention of the learned Advocate of the plaintiff-petitioners that plaintiffs' suit was not barred by limitation since he would get one year more from 26-12-1988 and thus the period for filing the suit seeking redemption was to expire in December, 1989 but the suit having been filed on 27th September, 1989 the same was not barred by limitation legally not well founded and sustainable. The High Court Division was not in error in holding that the plaintiffs' suit was barred by limitation.

 

Guljan Bibi vs Md Fazlu Miah 12 BLC (AD) 18.

 

Article 142

 

In view of the evidence both oral and documentary on the point of possession there is nothing on record to suggest that the plaintiffs are not in possession. PW I, Hanif Miah used to pay rent to the Government regularly vide exhibit 2A to 2F starting from 1954-1975 and those rent receipts are evidence of possession. On examination of the rent receipts vide exhibit 2A to 2F together with the evidence of PWs and DWs, we are unable to agree with the finding of the trial Court that the suit was barred by law of limitation as well as barred by section 42 of the Specific Relief Act as the plaintiffs could not prove their exclusive possession in the suit land within 12 years from before the date of filing of the suit. This finding of the trial Court below appears to be perverse and the same does not deserve to be sustained.

 

Hachina Begum vs Abdul Mannan 15 BLC 625

 

Article 142

 

The defendant Nos. 7 and 10 are the cousin brothers of the plaintiff who supported the continuous possession of the defendant for more than the statutory period of limitation. The Exhibit 'Kha' is the registered partition deed dated 27-8-50 and the Exhibit 'Kha (1)' is the registered partition deed dated 2-9-68. From those 2(two) parti­tion deeds it shows that the suit property was in possession of the defendants at least from 27-8-50. The SA record was prepared following the partition deed dated 2-9-68 (Exhibit-(l) and the defendants paid rent vide Exhibit 'Ga' series which were dated 24-6-1969, 18-9-1973, 16-3-1996, 3-8-1988. The DW 5 and DW 6 supported the defendants' possession and admitted the fact that the shops were constructed upon the suit land for more than 8 (eight) years back. These evidence if be read together have proved beyond doubt that the defendants were in possession all through in the suit land and the plaintiff was never in possession and the plaintiff hopelessly failed to prove his possession and dispossession in the suit land.

 

Abdul Hamidvs Aminul Islam Choivdhury 12 BLC 586.

 

Article 142

 

The petitioner and other defendants raised their huts and structures including the tin-sheds, from time to time, without any lawful authority. As such, they do not have any semblance of any title whatsoever. They do not claim any right, by adverse possession. Besides, even if they are in possession since 1971, the instant suit for declaration of title and recovery of khas possession, was within the period of limitation of 12 years under Article 142 of the Limitation Act, taking into consideration of the provisions of the Bangladesh (Legal Proceedings) Order, 1972 (President's Order No. 12 of 1972). In that view of the matter, there is find no reason to disagree with the concurrent findings of facts arrived at by both the Courts below.

 

Zafur AH (Md) vs Chandpur Tea Co Ltd 13 BLC 507.

 

Article 142

 

Adverse possession—In the instant case in their pleading the Mahaluxmi bank did not raise the plea of their acquiring title by adverse possession and so no issue was framed regarding acquiring of title of the bank in the suit land by their adverse possession. However, since the defendant No. 1 asserted that they acquired title also by adverse possession, issue No. 6 was framed regarding the acquiring of title by the defendant No. 1 on the basis of adverse possession. Even if the bank proves possession over period of 12 years, they will not succeed if the title remained with the defendant No. 1.

 

Ruhul Amin vs Official Liquidator, Mahaluxmi Bank Ltd U BLC (AD) 1

 

Article 142

 

It appears that the right of adverse possession cannot stand since the defendant claims that he took settlement of the land from his landlord but on his failure to prove his such claim he cannot raise the alternative plea.

 

Jamira Khatun vs Fazlul Karim 15 BLC (AD) 236.

 

Article 144

 

The learned Sub-ordinate Judge being the trial Court and the learned District Judge being the appellate Court have committed an error of law resulting in an error in the decision occasioning a failure of justice declaring title of the plaintiff by adverse possession in the suit land without being based on any proper pleading and as well as any evidences on record. The finding and decision arrived by the learned District Judge are although concurrent in nature but those are perverse and not sustainable in law. Those decisions having been arrived at without being based on any evidence on record are set-aside.

 

Abdul Gani Master vs Ayub Ali Mollah 12 BLC 16.

 

Article 144

 

The High Court Division upon correct assessment of the materials on record held that the plaintiff has been able to prove his continuous, uninterrupted and hostile possession in the suit land for over 12 years and accordingly, held that good and infeasible title by adverse possession has accrued in favour of the plaintiff and accordingly, made the Rule absolute.

 

Hari Thakur Deb Bigraha vs Md Abdul Hannan 13 BLC (AD) 38.

 

Article 144

 

Admittedly the plaintiff is a co-sharer in the 'C schedule land with the defendants. The High Court Division has therefore erred in law in holding that the plaintiff acquired title to the said 'C' schedule land by adverse possession in failing to appreciate the legal position that the plaintiff being a co-sharer in the land along with other co-sharer defendants could not acquire title through adverse possession, inasmuch as his possession in the land, if any, is not exclusive, Possession of a co-sharer in a joint land for even more than 12 years shall not constitute adverse possession as against other co-sharers.

 

Probir Kumar Rakshit vs Abdus SaburU BLC (AD) 28

 

Article 144

 

It appears from the record that there is no sufficient pleading in support of plaintiff's claim of adverse possession in the suit land and there is also no legal evidence as well in support of plaintiff's claim. To enable a plaintiff to acquire title by adverse possession, his possessions must be of actual, open, notorious and hostile character as to amount to ouster of exclusion of the real owner. The plaintiff has utterly failed to prove his title in the suit lands. PW 1 stated that he got decree in Title Suit No.62 of 1997. The decree was executable but admit­tedly he failed to execute the decree and thus, the decree was rendered infructuous after expiry of three years of the date of passing the decree. Moreso, no right or title is conferred on the plaintiff on the strength of the said decree the suit land having been declared enemy property any other decree except that the suit land is not an enemy property was of no avail.

 

Md Ali Bepary vs Garupranjan Chakraborty 14 BLC (AD) 97

 

Article 144

 

The trial Court dismissed the Title Suit No.383 of 1978 and decreed the Title Suit No.623 of 1979 in favour of the present respondent and declared that the defendant Nos. 2-5 acquired ownership of the suit house by adverse possession and they are entitled to retain their possession of the same. The High Court Division was right in affirming the judgment of the Courts below.

 

Binapani Kandu vs Chairman, Vested and Non-Resident Property U BLC (AD) 101

 

Article 149

 

In order to acquire title by way of adverse possession the plaintiffs must prove their possession for more than 60 years as provided in Article 149 of the Limitation Act, 1908. The rokka pattan by which the plaintiffs' predecessor claimed to have taken pattan though not proved even if taken into consideration for the purpose of possession it appears that the same is dated 18th Kartic 1351 BS corresponding to 2/3 November, 1944 and the suit was instituted on 2-1-2005, that is, before 60 years. Therefore, the plain­tiffs did not acquire any title to the suit land by virtue of their possession.

 

Bangladesh vs Rafeda Khatun U BLC 220.

 

Article 149

 

In order to get title by adverse possession against Government, the plaintiff must have 60 years uninterrupted possession.

 

Waseq Lilian vs Rezia Khatun 16 BLC 300

 

Article 164

 

The date of knowledge of the respondent No. 1 of the original Title Suit No. 153 of 1982 on 12-12-1983 but he filed the instant Miscellaneous Case No. 5 of 1988 on 9-1-88 i.e. long 5 years after the date of his knowledge of the original suit and the High Court Division erroneously ignored this factum of the High Court Division did not meet the reasonings of the trial Court and also did not consider that the miscellaneous case is barred by limitation on the ground of not filing the miscellaneous case within 30 days from date of the knowledge of original suit i.e. on 12-12-1983.

 

Abdus Samad Khan vs Dulal Chandra Chose U BLC (AD) 164.

 

Articles 171 and 177

 

From that moment time begins to run and unless within 60 days from the date of abatement an application be made under Order XXII, rule 9 the matter ends, as has been observed by various jurists of the sub-continent. In other words, abatement is automatic after the expiry of 90 days from the date of death of a party as provided in Article 177 of the Limitation Act and unless the abatement be set-aside on a proper application presented within 60 days from the date of abatement as provided under Article 171 of the Limitation Act or a period further extended by virtue of section 5 of the Limitation Act upon condoning the delay, the suit or appeal becomes dead.

 

Gopal Chandra Shil vs Government of Bangladesh 11 BLC 334.

 

Article 181

 

A preliminary decree for sale of mortgaged property can be enforced only by applying for an order for a final decree in accordance with Order XXXIV, rule 5 of the Code of Civil Procedure and the limitation for such application will be governed by Article 181 of the Limitation Act.

 

Rupali Bank Ltd, Dhaka vs Brick Linkers Ltd 16 BLC (AD) 107.

 

684

Local Government City Corporation Election Act, 2009

Citation: 17 BLC (AD) 42

Case Year: 2009

Subject: Local Government City Corporation Election

Delivery Date: 2018-07-03

Local Government City Corporation Election Act, 2009

[LX of 2009]

 

Section 9(2)(ga)

 

The term 'election' includes the whole election process passing through several stage and a dispute in any stage is an election dispute which can be challenged and determined only by an election petition after conclusion of the final stage of the process. Law does not contemplate intervention of any Court during any intermediate stage of the election process.

 

Iqbal Hossain (Md) vs Bangladesh 17 BLC (AD) 42.

685

Local Government Engineering Department (Employees & Officers Appointment) Rules, 2009

Citation: 17 BLC (AD) 91,

Case Year: 2009

Subject: Local Government Engineering Department (Employees & Officers Appointment)

Delivery Date: 2018-07-03

Local Government Engineering

Department (Employees & Officers

Appointment) Rules, 2009

 

Rule 3

 

Merely because a temporary employee or a casual wage worker is con­tinued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made perma­nent, on the strength of such continuation, if the original appointment was not made by following a due process of selection. It is not open to the Court to prevent regular recruit­ment at the instance of temporary employees whose period of employment has come to an end or of ad-hoc employees who by the very nature of their appointments, do not acquire any right.

 

Chief Engineer, The Local Government & Engineering Department vs Kazi Mizanur Rahman 17 BLC (AD) 91

 

Rule 3

 

Naturally, the employees and officers who have been working in respect of those development projects will be eligible for, consideration for absorption in the revenue set up, and the other employees and officers either employed on monthly pay scale basis or on daily wage basis in respect of other development projects cannot claim as of right for absorption.

 

Chief Engineer, The Local Government & Engineering Department vs Kazi Mizanur Rahman 17 BLC (AD) 91.

686

Local Government (Paurashava) Act, 2009

Citation: 16 BLC (AD) 8, 15 BLC 757, 15 BLC 502

Case Year: 2009

Subject: Local Government (Paurashava)

Delivery Date: 2018-07-03

Local Government (Paurashava) Act, 2009

[LVIII of 2009]

 

Sections 31 and 32

 

On  the application of the writ-petitioner, the High Court Division issued a Rule and stayed operation of the impugned orders. It should be noted that an order once takes effect, it cannot be stayed. If an order of suspension takes effect, if cannot be stayed till the same is finally disposed of on merit.

 

Bangladesh vs Sarwar Kamal 16 BLC (AD) 8.

 

Sections 32(Ka), 32(Gha), 40 and 41

 

Admittedly the appeal/Revision is still pending and does not appear to have any nexus with the petitioner's functioning as Chairman of the Paurashava. The continua­tion of the Criminal Appeal/Revision is not a bar to the petitioner continuing his office as Chairman. The petitioner Chairman is holding the post and position as Chairman by operation law and he is required and entitled to get back financial power from Panel Chairman No. 1, in order to discharge his function properly.

 

Shish Mohammad vs DC, Rajshahi 15 BLC 757

 

Section 38(3)(4)

 

From the said impugned Memo it does not appear that the meeting was convened rather the petitioner was requested to show cause as to why the meeting would not be called for. By the impugned Memo dated 11-1-2010 it cannot be said that the petitioner was prejudiced in any matter inasmuch as he was given the opportunity to explain his position within 10 (ten) working days from the date of receipt thereof. The petitioner without showing cause to the impugned Memo dated 11-1-2010 moved this Court with this writ petition on misconception and misconstruing the provisions of sub-sections (3) and (4) of section 38 of the Local Government (Poura-shava) Act, 2009.

 

Mostafa Kamal vs Bangladesh 15 BLC 502.

687

Local Government (Union Parishad) Ordinance, 1983

Citation: 16 BLD (AD) 121, 14 BLD(HCD)489, 15 BLD (HCD) 190, 18 BLD (HCD)12, 16 BLD(HCD)177, 14 BLD (HCD) 275, 17 BLD (AD) 303, 15 BLD (HCD) 190, 22 BLD (HCD) 625, 19 BLD(AD)125, 20 BLD (AD) 174, 20 BLD(AD) 189, 19 BLD(AD)157, 20 BLD(’HCD)359, 14 BLD (AD) 155, 1

Subject: Local Government (Union Parishad)

Delivery Date: 1970-01-01

 

 

 

Local Government (Union Parishad) Ordinance, 1983

(LI OF 1983)

 

Section—6(2), 9 and 13(b)

The Oath of Office (Union Parishads) Rules, 1983, Rule—2

If the Deputy Commissioner cannot administer the oath of office as contemplated in sections 6(2), 9 and 13(b) of the Local Government (Union Parishads) Ordinance, 1983 and Rule 2 of the Oath of Office (Union Parishads) Rules, 1983 no legal consequence has been provided for. The failure of the Chairman and Members to take oath can be inferred only when the Deputy Commissioner fixes a date of oath within 30 days of Gazette notification and the Chairman or Members without good cause shown, fail to take oath on the date fixed.

Syed Hedayet Ali Vs. The Chief Election Commissioner and others, 16 BLD (AD) 121

 

Section—7

On interpretation of Section 7 of the Ordinance read with Section 30(1) (b) of the Intermediate and Secondary Education Ordinance, 1961 it is held that a non-government school is a “local authority” and as such the teacher of a local secondary school is disqualified for election to the Local Union Parishad as Chairman.

Abdul Mazid Vs. Abu Zaffor Mohammad Khalil, 14 BLD(HCD)489

 

Section—7 (d)

Union Parishad Rules, 1983, Rule—2 (2)

When disqualification incurred by the petitioner under Section 7 (d) of the Local Government (Union Parishads) Ordinance, 1983 is removed it shall be deemed that it was never incurred by him in view of the order of acquittal passed by the High Court Division in his appeal from the judgment and order of conviction under Sections 302/109 of the Penal Code.

Under Rule 2 (2) of the Union Parishad Rules, 1983 (The Oath of Office), the Deputy Commissioner is empowered to give oath on a subsequent date to the office of the Chairman of the Union Parishad if the cause shown for extension of time is just and proper.

Md. S.M. Abdur Rob Vs. Bangladesh and others, 15 BLD (HCD) 190

 

 

Ref: Serajul Huq Chowdhury Vs. Nur Ahmed Chowdhury, 19 D.L. R. 766—Cited.

 

Section—7(2)(g)

Petitioners father Year Mi Munshi took loan from the Bank and died without repayment of the same. There was no intimation by the Bank to the petitioner that he is a loanee of the Bank in respect of loan taken by his father. Under such circumstances, the petitioner cannot be fund to be a defaulter on the ground of the loan earlier taken by his deceased father. Particularly when the said loan is stated to have been adjusted, the Returning Officer acted illegally in rejecting the petitioners nomination paper on the ground of being a defaulter under section 7(2)(g) of the ordinance.

Md. Abdul Jalil Munshi Vs. Returning Officer and others, 18 BLD (HCD)12

 

Sections—7(2) (g)

Result of participation in election by a Disqualified Candidate

Once it is found that a person stands disqualified under Section 7(2) (g) of the Ordinance at any stage of the election process and he continues to incur such disqualification, his participation in the election renders the entire election result void as the non-participation in the election of such a disqualified candidate might give scope to the general voters to cast their votes differently in favour of other candidates. Under such circumstances, it is to be held that the participation of a disqualified candidate in the election materially affected the result of the election and tht. Election Tribunal should direct for re-election.

Md. Sharfuddin Vs Md. Mofizuddin Sarker and others, 16 BLD(HCD)177

 

Section—12

Union Parishad Chairman aid Members (Resignation, Removal and Vacation of Office) Rules, 1984, Rules—4

Having regard to the provision of Section 4 of the Union Parishad Chairman and Members (Resignation, Removal and Vacation Office) Rules 1984, the application may submitted by the requisitionists either to the Upa-Zilla Nirbahi Officer or the Deputy Commissioner for convening a special met ing as required by sub-section (2) of Section 12 of the Ordinance. It is thus clear that bold the officers have got jurisdiction and power i imitating the necessary proceedings. In th instant case since a copy of the application for convening a special meeting addressed to the Deputy Commissioner was also sent to th Nirbahi Officer, the latter’s action authorizing the Assistant Commissioner for holding enquiry and conducting the requisition meeting cannot be held to be illegal and without lawful authority.

Alhaj Md. Saidur Rahman Vs. Secretary, Ministry of Local Govt. and Rural Development and others, 14 BLD (HCD) 275.

Ref: Md. Monirul Hoque Vs. Govt. of Bangladesh and others, 41 DLR(AD) 108; B.D. Habibullah Vs. Election Commission and others, 42DLR(AD) 218; Vine Vs. National Dock Habour Board, 1956 Vol. 3 All England Law Reports 439; 1956 A.C. 488; Md. Habibur Rahman and others Vs. Hasan Ali Mondal & others, 34 DLR(AD)158-Cited.

 

Sections—12(1) and 65(1)

Removal and Suspension of Chairman and Members

On a reference to section 65(1) of the Ordinance the High Court Division found that no proceeding was initiated for the removal of the respondent Chairman under section 12 of the Ordinance nor any criminal case was started against him nor any enquiry was made by the Government wherein he was found to be guilty of any misconduct within the meaning of section 12(1) of the Ordinance. Law requires that before suspending or removing a Chairman or a member the Government must form an opinion on the basis of an enquiry that the delinquent acted in a manner prejudicial to the interest of the Union Parishad or undesirable from the point of view of public interest. Passing of the impugned order of suspension without complying with the strict requirements of law cannot be sustained.

Bangladesh Vs. Md. Lutfur Rahman and others, 17 BLD (AD) 303

 

Section—13

Union Parishad Rules, 1983, Rule—2 (2)

Vacation of the Office of the Chairman or Member of the Union Parishad

Where a person being in jail custody is elected Chairman of a Union Parishad but on publication of the election result by the Election Commission he could not take oath on the fixed date, his prayer for extension of time for taking oath made to the Deputy Commissioner on the ground that he would be acquitted by the High Court Division in the pending appeal and his order of conviction and sentence under Sections 302/109 of the Penal Code would be set aside is a good cause shown within the meaning of Section 13 (D) of the Ordinance and Rule 2 (2) of Union Parishad Rules, 1983.

Md. S.M. Abdur Rob Vs. Bangladesh and others, 15 BLD (HCD) 190.

 

Section—20(5)

Under section 20 of the Ordinance only he delimitation officer is responsible for making preliminary and final list of wards. The Thana Nirbahi Officer may give his decision on specific matter to the delimitation officer, following which the delimitation officer may make amendment, alteration or modification in the preliminary list in the manner prescribed in sub-section (5) and only after that he Thana Nirbahi Officer shall publish the final list in the official Gazette.

Md. Serajul Islam . Bangladesh and j at hers, 22 BLD (HCD) 625.

 

Section—24

Election Commission has got inherent power under the provision of the Union Parishad Election Ordinance, 1983, of superintendence, control and directions which should be construed to mean the power to supplement the statutory rules with the sole purpose of ensuring free and fair elections.

Md. Abul Bashar Vs Kamrul Hasan and others, 19 BLD(AD)125

Ref: 45 DLR(AD)53—relied upon.

 

Section—24

Union Parishads (Election) Pules, 1983

Rule—70

It is the responsibility of the Election Commission to see that the election is conducted justly, honestly and fairly and not to encourage demonstration of muscle power in the election. It is now well-settled that the post-election allegations are to be decided by the Election Tribunal and not by the Election Commission. If there are contemporaneous report or allegations about disturbance, rigging of ballot papers or election not being held justly, honestly and fairly then after being satisfied about the correctness of the report or allegations Election Commission would be justified to cancel the result of the election and direct repoll. But it would not be justified to cancel the result of election held peacefully on the basis of post-election allegations.

Noor Hossain Vs Md. Nazrul Islam and others, 20 BLD (AD) 174.

 

Section—26

When the election process is still on the High Court Division ought not have interfered with the matter on a disputed and controversial fact and resolved them on mere affidavits.

Al-Haj Jamshed Ali Vs A K M Abdullah and others, 20 BLD(AD) 189

Ref: Nazir Ahmed Vs. Bangladesh Election Commission and ors. 41DLR (AD)87— relied.

 

 

Section—29(4)

Code of Civil Procedure, 1908, Section—115(1)

It is well settled that the District Judge acting as an Election Appellate Tribunal under the Ordinance is not a persona designata and that his decision is revisable, under section 115 of the Code of Civil Procedure.

Abdul Mutalib Vs Md. Mostakim Au and others, 19 BLD(AD)157

 

Section—29(4)

Union Parishads (Election) Rules, 1983, Rule—38

Although no objection regarding counting of invalid votes was raised at the time of counting of votes but omission to raise such objection is no bar to challenge the result of an election in an election petition, as such objection gives rise to an election dispute which is within the purview of the election tribunal to direct recounting of votes.

Md. Mozammel Hoque Vs Mohammad All and ors., 20 BLD(’HCD)359

Ref: Khandker Rezaul Karim Vs. Md Babul Hossain and ors 4BLC(AD)209—relied

Ref: 38 DLR262; 38 DLR4p; 38 DLR435 28 DLR189; 27DLR388; 38DLR172; 28DLR 368; 3IDLR1I9; 27DLR373 48DLR(AD)59; 48DLR(HC) 569—Cited.

 

Sections—60, 65

There are three alternative circumstances which provide occasions for the Government to exercise the power of suspension of a Chairman : (i) where any proceeding has been initiated for the removal of the Chairman under Section 12 or (2) where any criminal proceeding under any law has been started against such chairman or (3) where on an enquiry by the Government he is found guilty of any misconduct within the meaning of Section 12 (1) . But the exercise of this power is conditional upon a formation of opinion by the Government that the functioning of the person concerned as chairman is prejudicial to the interest of the Union Parishad or undesirable from the view of public interest.

Whenever in any statute the exercise of power by any authority is made conditional upon the formation of opinion of such authority, the formation of a rational opinion is a sine qua non for the exercise of such power. The Government must form the required opinion in terms of the language mentioned in Section 65(1) of the Ordinance after being satisfied that the materials before it have a causal connection with the kind of opinion that is required to be formed.

Bangla4esh Vs. Md. Lokman Patwari and another, 14 BLD (AD) 155.

 

Section—65(1)

Suspension of Chairman and members

Before the Government can exercise power of suspension under section 65(1) of the Ordinance the delinquent Chairman should be given an opportunity of being heard. The formation of the opinion of the Government in this regard must be on the basis of materials before it for being satisfied that the suspension order is necessary in the interest of the Union Parishad or desirable from the view point of public interest. In the instant case neither of the conditions contemplated under section 65(1) of the Ordinance having been satisfied, the impugned order of suspension must be held to be illegal and without any lawful authority.

Mofazzal Hossain Sarker Vs Bangladesh and others, 17 BLD(HCD)76

Ref: 40 DLR (AD)170; 16 DLR(SC) 722; 46 DLR(AD) 163;—Cited.

 

688

Local Government (Upazila Parishad)

Citation: 17 BLC 506

Subject: Local Government (Upazila Parishad)

Delivery Date: 2018-07-03

Local Government (Upazila Parishad)

 

Sections  16 and 26

 

The question whether the respondent No. 2 was a loan defaulter or not will be determi ned in the pending election appeal and not by summary proceeding in writ jurisdiction.

 

Dauad (Md) vs Bangladesh 17 BLC 506.

689

Local Government (Upazila Parishad) (Election Code of Conduct) Bidhimala, 2008

Citation: 17 BLC 506

Case Year: 2008

Subject: Local Government (Upazila Parishad) (Election Code of Conduct)

Delivery Date: 2018-07-03

Local Government (Upazila

Parishad) (Election Code of

Conduct) Bidhimala, 2008

 

Rule 12(2)

 

The question whether the respondent No. 2 was a loan defaulter or not will be determi ned in the pending election appeal and not by summary proceeding in writ jurisdiction.

 

Dauad (Md) vs Bangladesh 17 BLC 506.

690

Local Government (Upazila Parishad) Ordinance, 2008

Citation: 15 BLC 506

Case Year: 2008

Subject: Local Government (Upazila Parishad)

Delivery Date: 2018-07-03

Local Government (Upazila Parishad)

Ordinance, 2008

[xxxn of 2008]

 

Sections 9, 11 & 82

 

On a careful scanning of the provisions of Article 119(2) of the Constitution read with sections 9 and 11 to the Ordinance, 2008 and Rule 93 and 94 of the Rules, 2008 it is abundantly clear that Election Commission is definitely empowered with the plenary power to conduct the election freely, fairly, justly and honestly. 'Election' covers the entire process starts with the publication of the notification of schedule and culminates with the publication of the result in the official Gazette under section 11 of the Ordinance, 2008 read with Rule 47 of the Rules 2008. Though there was no allegation whatsoever before the Presiding Officer or the Returning Officer as to any illegality or irregularity in the conduct of election yet the Election Commission exercising its plenary and supervisory power to oversee the conduct of the election can act upon to resolve post-election matters.

 

Ataur Rahman vs Election Commission 15 BLC 506.

691

Local Government (Upazila Parishad) Rules, 2008

Citation: 15 BLC 506

Case Year: 2008

Subject: Local Government (Upazila Parishad)

Delivery Date: 2018-07-03

Local Government

(Upazila Parishad) Rules, 2008

 

Rules 10,11,43, 46, 47, 93 & 94

 

On a careful scanning of the provisions of Article 119(2) of the Constitution read with sections 9 and 11 to the Ordinance, 2008 and Rule 93 and 94 of the Rules, 2008 it is abundantly clear that Election Commission is definitely empowered with the plenary power to conduct the election freely, fairly, justly and honestly. 'Election' covers the entire process starts with the publication of the notification of schedule and culminates with the publication of the result in the official Gazette under section 11 of the Ordinance, 2008 read with Rule 47 of the Rules 2008. Though there was no allegation whatsoever before the Presiding Officer or the Returning Officer as to any illegality or irregxilarity in the conduct of election yet the Election Commission exercising its plenary and supervisory power to oversee the conduct of the election can act upon to resolve post-election matters.

 

Ataur Rahman vs Election Commission 15 BLC 506.

692

Marine Insurance Act, 1906

Citation: 11 BLC 363

Case Year: 1906

Subject: Marine Insurance

Delivery Date: 2018-07-03

Marine Insurance Act, 1906

 

Section 55

 

Admittedly, the defendant issued the Insurance cover on 2-5-1983 on receipt of the first instalment of the premium with the stamp duty. After issuance of the Marine Policy the Sadharan Bima Corpora­tion cannot be heard to deny payment of the amount covered by the insurance policy if the trawler capsized at any time after the insurance cover was issued on 2-5-1983. The trawler sailed on 2-5-1983 and capsized on 5-5-1983. The reasons assigned by the trial Court while deciding issue No.3 against the plaintiff cannot be accepted. The trial Court has kept out of consideration large number of papers which clearly indicate that the vessel sailed on 2-5-1983 and capsized on 5-5-1983. Non consideration of the aforesaid large number of documentary evidence by the trial Court has vitiated the impugned judgment with regard to issue No. 3.

 

Sadaran Bima Corporation vs MA Halim 11 BLC 363.

693

Mohammedan Law

Citation: 13 BLC 606, 14 BLC (AD) 32, 14 BLC 553, 16 BLC 10, 16 BLC 431, 16 BLC 267, 12 BLC 202, 12 BLC 202, 11 BLC 329, 11 BLC 694, 11 BLC 617, 12 BLC 202, 12 BLC 202, 16 BLC 10, 16 BLC 791, 15 BLC 338

Subject: Mohammedan Law

Delivery Date: 2018-07-03

Mohammedan Law

 

Talab-e-mowasibat and Talab-e-Ishaad

 

From the deposition of PW 1 it is clear that he did not assert that immediately after he came to know about the sale in question demanded preemption of the land transferred by the kabala in question by jumping and thus talab-e-mowasibat was observed and then he, in presence of the two witnesses by referring to his said immediate demand of preemption requested the seller or the buyer or on the land transferred to accept the kabala money and execute and register the necessary sale deed in favour of the plaintiffs and thus strictly observed the formalities of talab-e-Ishaad and therefore, the plaintiffs were entitled to file the suit for preemption.

 

Monir Miah vs Shafiqur Rahman 13 BLC 606.

 

There may not be presumption of jointness of family in the Muslim Law, but the fact has been established that after the death of Faizuddin Sheikh, father of the plaintiffs and defendant No.l, the members of Faiz-uddin's family were in one mess and the income of the property left by Faizuddin was in the common fund of the plaintiffs and the defendant No.l and in the background of the said fact the lower appellate Court observed that by the money of the joint fund of the plaintiffs and the defendant No.l the auction purchase was made. It was not established that the defendant No.2 had any independent source of income.

 

Daliluddin Sheikh vs Alek Sheikh 14 BLC (AD) 32.

 

On appraisal of evidence of PW 1 Moijan Bibi, and it appears that there is no specific evidence that she did not put her left thumb impression in the register book and she also failed to show that her signature appears in the registered book is not her signature. Therefore, learned Judge of Court of appeal below as a final Court of facts came to a definite findings that deed of gift and Heba-bil-Ewaz were executed by plaintiffs which is correct. The trial Court without considering the materials on record, particularly transfer of Land by deed of Arponnama in favour of plaintiffs, decreed both the suits which are not correct.

 

Aleton Bewa vs Md Zakher AH Sonar 14 BLC 553.

 

Section 35

 

According to Mullah's Mohammedan Law charge of lian does not of itself terminate the marriage. The marriage continuous until the decree is passed. In this case where husband made allegation against his wife of adultery, so in such a situation there is no alternative but to pass an order of separation (divorce).

 

Ntirul Islam vs Nur Ayesha Begum 16 BLC 10

 

Sections 117 and 118

 

A Moham­medan cannot dispose of more than V3rd of his properties by way of gift or wasiatnama of his estate unless the heirs give consent before or after the death of the testator. Plaintiff's personal property and his home­stead also cannot be included in the wasiatnama but the same was included in the wasiatnama even testator's sister's property was included in the wasiatnama which shows that the testator was not in sound mind when he executed and registered the wasiatnama

 

Dudh Meher vs Jobed AH Pahlowan 16 BLC 431

 

Section 207 — Waqf Estate — transfer ability of

 

Mutuwalli not to transfer save with permission of court.

 

Zareen Biscuit Company vs Sayed M. Salimullah 16 BLC 267.

 

Section 231

 

Admittedly, the aforesaid suits were heard analogously. But the pre-emptor failed to point out on which portion of the 'A' Schedule land the alleged demands were made. This is also fatal for the pre-emptor. PW 1 further stated in cross that be so how he could perform the Talab in accordance with the provisions of Muslim Law. Besides, PW 2 and PW 3 are silent about the reference of Talab-i-Muwsibat while making Talab-i-Ishhad. The consistent view of all the superior courts of the sub-continent is that at the time of making demand non-reference to the first demand is fatal to the case of the claimant of the right of pre-emption. For the foregoing reasons the plaintiffs-respondents have miserably failed to prove the performance of the Talabs in the instant case which is fatal for the plaintiffs.

 

Youmisco K Textiles Ltd vs Jamuna Knitting and Dyeing Ltd 12 BLC 202.

 

Section 231

 

In Article 28(1) of the Constitution it has been laid down that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. It, thus, appears that Muslim Law of pre-emption so far it is applicable to the urban property is discrimi­natory and a Muslim citizen is placed at a higher plain than the other non-Muslim citizens of the State and this also affects the secular nature of the Republic. Muslim law of pre-emption in so far as it relates to the town property is void on the ground that it discri­minates between a citizen and a citizen on the ground of religion and faith, inasmcuh as under section 24 of the Act a non-Muslim contiguous land holder cannot maintain an action for pre-emption but a Muslim can. The law of pre-emption as laid down in section 231(3) in Mullah's Principles of Moham­medan Law, i.e. right to pre-empt a sale as a Shafi-i-Jar which is right of pre-emption based on vicinage, appears to be unconstitutional and offends the provision of Article 42(1) read with Article 31 of the Constitution as it imposes an unreasonable restriction on power of alienation of property and/or acquiring property. So, the provisions of Muslim law of pre-emption, so far it relates to Shafi-i-Jar, is declared to be void as it offends Article 42(1) of the Constitution.

 

Younusco K Textiles Ltd vs Jamuna Knitting and Dyeing Ltd 12 BLC 202.

 

Section 231

 

In the instant case, vendor is a company so also is one of the vendees i.e. plaintiff No. 1 is a company and they are incapable of having any faith in any religion. Therefore, in the facts and circumstances of the case there is no scope to invoke the provisions of Suffa under the Muslim Law. The suits are misconceived and not maintain­able in their present forms and manner. Only a natural person can become a Musalman and profess the faith of Islam. A juridical person is incapable of following any religion. It is true plaintiff No. 2 is a natural person but the suits as framed cannot be maintained by him solely as there is no averments in the plaint nor in evidence to show contiguity of his land with the suit land. The plaintiffs cannot invoke the right of Suffa in the facts and circumstances of the case. It is now well established that in a pre-emption suit the plaintiff must establish his exclusive ownership into the contiguous land as Shafi-i-jar. Therefore, finding of the trial Court that the plaintiffs are the owners of the 'B' Schedule land is erroneous and against weight of evidence. Withholding the impartial witness who admittedly accompa­nied PW 1 on 9-3-1997 and 19-3-1997 also speaks volumes against the plaintiffs and it appears to us to be a fit case where adverse presumption can be drawn that if any of the neutral persons would have been examined they would hot support the case of the plaintiffs.

 

Younusco K Textiles Ltd vs Jamuna Knitting and Dyeing Ltd 12 BLC 202.

 

Section 231—Barred by limitation

 

The instant suit is under the Muslim Law. No doubt, in the agreement it is stipulated that the sale shall not be completed unless the sale deed is registered. But this stipulation cannot stand in the way of the pre-emptor if he wants to pre-empt the sale under the Muslim Law. In the present case, the plaintiff has instituted the suit under the Muslim Law but it appears that he made the demands long after the sale was completed under the Muslim Law. The admitted position is that the agreement Exhibit A was executed on 16-8-1995 and part payment was also made on that day and physical possession of the property was also handed over to the vendee. On receipt of payment of full consideration the sale deed was executed and presented for registration on 7-3-1996 and the suit was filed on 30-6-1997 which is well beyond the period of limitation. It thus appears that the suits are also barred by limitation but unfortunately, this material legal aspect of the case was totally lost sight of by the trial Court and in arriving at a finding that the suit is not barred by limitation it erroneously relied on the provisions of General Law which has no manner of application to the instant case.

 

Younusco K Textiles Ltd vs Jamuna Knitting and Dyeing Ltd 12 BLC 202.

 

Section 231

 

Under the Muslim Law the right of pre-emption is allowed to a claimant in consideration of his necessity and not as a matter of luxury. This principle should always be kept in mind while determining the claim of pre-emption. The plaintiffs are already owners of vast tract of lands i.e. the 'W Schedule land. They have already erected two industries in two different portions of the 'B' Schedule land and unutilised lands are still there. The plaintiffs have never explained why they need the suit land. The suit land is not 'Aqar' or houses or small land. "Aqar" or land alone can be the subject matter of pre­emption where the subject matter of pre­emption consists of a share in a village or a large estate. But neither a neighbour who is not a co-sharer nor a participator in appendages can claim it on the ground of merely of vicinage.

 

Younusco K Textiles Ltd vs Jamuna Knitting and Dyeing Ltd 12 BLC 202.

 

Section 231

 

Both the Courts below concurrently found that the plaintiff has discharged his onus to observe the legal formalities i.e. Talab-i-Mousibat and Talab-i-Ishad in demanding the suit land. There is no reason to disturb the concurrent findings arrived at by the Courts below.

 

Bangladesh Krishi Bank vs Kazi Liakat Ali 11 BLC 329.

 

The appellate Court correctly found that the payment of consideration at a later day i.e. handing over of Holy Quran after 4 days, did not make the Heba-bil-ewaj invalid. It appears that the payment of consideration in advance and payment of consideration subsequently could constitute valid Heba-bil-ewaj if the other two essential elements i.e. actual payment of consideration and the intention of the donor to divest itself from the title really exist. Although section 168 of Mulla's Principles of Mohamadan Law is silent on the point of actual time of payment of consideration in order to make a valid Heba-bil-ewaj yet the superior Courts of this Sub-continent held that the consideration in Heba-bil-ewaj may be made at any time, be it in advance or afterwards. The shifting of onus upon the defendant No.l in respect of proving the genuineness of 2nd deed of Heba-bil-ewaj dated 3-1-1978 was correctly done which the defendant No.l miserably failed to discharge and, as such, the genuine­ness of the 2nd deed of Heba-bil-ewaj dated 3-1-1978 has not been proved. The appellate Court without considering this aspect allowed the appeal which needs interference by this Court.

 

Fazhd Haque Malik vs Nurjahan Begum 11 BLC 694.

 

Wasiatnama

 

Wasiatnama legally takes effect after the death of propositus but in present case the wasiatnama speaks of taking effect during the lifetime of propositus rendering it to be a void document. Moreso, the wasiatnama in question contains some conditions contrary to the provisions of Mohammedan Law and stands as a void document and such void document needs no declaration for setting-aside. Before acquiring title to the property one cannot transfer it to another and if it is done so, it would be a void document.

 

Ambia Khatun vs Abdus Salam 11 BLC 617.

 

Section 231

 

Admittedly, the aforesaid suits were heard analogously. But the pre-emptor failed to point out on which portion of the 'A' Schedule land the alleged demands were made. This is also fatal for the pre-emptor. PW 1 further stated in cross that be so how he could perform the Talab in accordance with the provisions of Muslim Law. Besides, PW 2 and PW 3 are silent about the reference of Talab-i-Muwsibat while making Talab-i-Ishhad. The consistent view of all the superior courts of the sub-continent is that at the time of making demand non-reference to the first demand is fatal to the case of the claimant of the right of pre-emption. For the foregoing reasons the plaintiffs-respondents have miserably failed to prove the performance of the Talabs in the instant case which is fatal for the plaintiffs.

 

Yonnusco K Textiles Ltd vs Jamuna Knitting and Dyeing Ltd 12 BLC 202.

 

Section 231

 

In Article 28(1) of the Constitution it has been laid down that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. It, thus, appears that Muslim Law of pre-emption so far it is applicable to the urban property is discri­minatory and a Muslim citizen is placed at a higher plain than the other non-Muslim citizens of the State and this also affects the secular nature of the Republic. Muslim law of pre-emption in so far as it relates to the town property is void on the ground that it discriminates between a citizen and a citizen on the ground of religion and faith, inasmcuh as under section 24 of the Act a non-Muslim contiguous land holder cannot maintain an action for pre-emption but a Muslim can. The law of pre-emption as laid down in section 231(3) in Mullah's Principles of Moham­medan Law, i.e. right to pre-empt a sale as a Shafi-i-Jar which is right of pre-emption based on vicinage, appears to be unconstitu­tional and offends the provision of Article 42(1) read with Article 31 of the Constitution as it imposes an unreasonable restriction on power of alienation of property and/or acquiring property. So, the provisions of Muslim law of pre-emption, so far it relates to Shafi-i-Jar, is declared to be void as it offends Article 42(1) of the Constitution.

 

Younusco K Textiles Ltd vs Jamuna Knitting and Dyeing Ltd 12 BLC 202.

 

Section 231

 

In the instant case, vendor is a company so also is one of the vendees i.e. plaintiff No. 1 is a company and they are incapable of having any faith in any religion. Therefore, in the facts and circumstances of the case there is no scope to invoke the provisions of Suffa under the Muslim Law. The suits are misconceived and not maintain­able in their present forms and manner. Only a natural person can become a Musalman and profess the faith of Islam. A juridical person is incapable of following any religion. It is true plaintiff No. 2 is a natural person but the suits as framed cannot be maintained by him solely as there is no averments in the plaint nor in evidence to show contiguity of his land with the suit land. The plaintiffs cannot invoke the right of Suffa in the facts and circumstances of the case. It is now well established that in a pre-emption suit the plaintiff must establish his exclusive ownership into the contiguous land as Shafi-i-jar. Therefore, finding of the trial Court that the plaintiffs are the owners of the 'B' Schedule land is erroneous and against weight of evidence. Withholding the impartial witness who admittedly accompa­nied PW 1 on 9-3-1997 and 19-3-1997 also speaks volumes against the plaintiffs and it appears to us to be a fit case where adverse presumption can be drawn that if any of the neutral persons would have been examined they would not support the case of the plaintiffs.

 

Younusco K Textiles Ltd vs Jamuna Knitting and Dyeing Ltd 12 BLC 202.

 

Section 231Barred by limitation

 

The instant suit is under the Muslim Law. No doubt, in the agreement it is stipulated that the sale shall not be completed unless the sale deed is registered. But this stipulation cannot stand in the way of the pre-emptor if he wants to pre-empt the sale under the Muslim Law. In the present case, the plaintiff has instituted the suit under the Muslim Law but it appears that he made the demands long after the sale was completed under the Muslim Law. The admitted position is that the agreement Exhibit A was executed on 16-8-1995 and part payment was also made on that day and physical possession of the property was also handed over to the vendee. On receipt of payment of full consideration the sale deed was executed and presented for registration on 7-3-1996 and the suit was filed on 30-6-1997 which is well beyond the period of limitation. It thus appears that the suits are also barred by limitation but unfortunately, this material legal aspect of the case was totally lost sight of by the trial Court and in arriving at a finding that the suit is not barred by limitation it erroneously relied on the provisions of General Law which has no manner of application to the instant case.

 

Younusco K Textiles Ltd vs Jamuna Knitting and Dyeing Ltd 12 BLC 202.

 

Section 231

 

Under the Muslim Law the right of pre-emption is allowed to a claimant in consideration of his necessity and not as a matter of luxury. This principle should always be kept in mind while determining the claim of pre-emption. The plaintiffs are already owners of vast tract of lands i.e. the 'B' Schedule land. They have already erected two industries in two different portions of the 'W Schedule land and unutilised lands are still there. The plaintiffs have never explained why they need the suit land. The suit land is not 'Aqar' or houses or small land. "Aqar" or land alone can be the subject matter of pre­emption where the subject matter of pre­emption consists of a share in a village or a large estate. But neither a neighbour who is not a co-sharer nor a participator in appendages can claim it on the ground of merely of vicinage.

 

Younusco K Textiles Ltd vs Jamuna Knitting and Dyeing Ltd 12 BLC 202.

 

Section 336(2)

 

It is settled principle that if the marriage is consummated, the wife is entitled to get her whole of the unpaid dower, both prompt and deferred.

 

Nurul Islam vs Nur Ayesha Begum 16 BLC 10.

 

Sections 352 and 370

 

According to the Mohammedan Law father is bound to maintain his sons. So the mother is the custodian of the minor son till he has completed the age of seven years. The maintenance of the child must be paid by the defendant from 10-5-1992 to 6-10-1995.

 

Nurul Islam vs Nur Ayesha Begum 16 BLC 10.

 

Section 359

 

In view of the provisions of section 359 of the Mohammedan Law and section 27 of the Guardians and Wards Act the father is entitled to sell the property of the minor for its benefit as a legal guardian.

 

Renu Begum vs Khandokar Enamul Mowla 16 BLC 791.

 

Section 370

 

On perusal of the section 370 of the Mohammeden Law it is clear that it has been made mandatory upon the father to maintain his unmarried daughter till married. Admittedly the plaintiffs Nos. 2-4 are unmarried and they are students and, as such, they are entitled to have maintenance. The status of the defendant is Government Officer. It is not the case that the father (defendant) does not have enough means to maintain his daughters.Renwflra

 

Begum vs Mir Md Shamsuzzaman 15 BLC 338.

694

Money-Lenders Act, 1993

Citation: 11 BLC 56

Case Year: 1993

Subject: Money-Lenders

Delivery Date: 2018-07-03

Money-Lenders Act, 1993

[VII of 1933]

 

Sections 4 to 7

 

The Money Lenders Act, 1933, Bengal Money Lenders Act, 1940 and Usurious Loans Act, 1918 are applicable for the Money Lenders who are registered under those Acts and the Provisions of those Acts are not applicable in case of a schedule bank here in Banking Companies Act, 1981 and the plaintiff schedule bank is guided by the Banking Companies Ordinance, 1991. Further, section 30 of the Banking Companies Ordinance, 1991 provides bar on the Court to interfere with the charging of interest fixed by and between the bank and its client.

 

Rupali Bank Ltd vs Md Jiaur Rahman 11 BLC 56.

695

Municipal Corporation (Taxation) Rules, 1986

Citation: 13 BLC (AD) 77

Case Year: 1986

Subject: Municipal Corporation (Taxation)

Delivery Date: 2018-07-03

Municipal Corporation (Taxation)

Rules, 1986

 

Rule 20(3)(a)(ii)

 

Annual valuation is to be assessed on the gross annual rental of the building minus two months' rent as maintenance allowance. Hence the order of the Additional Commissioner, Chittagong Division, Chittagong fixing the annual valuation at Taka 2 per square foot is without any legal basis.

 

City Corporation, Chittagong vs Sonali Bank 13 BLC (AD) 77.

696

Muslim Family Courts Ordinance, 1985

Citation: 11 BLC 86

Case Year: 1985

Subject: Muslim Family Courts

Delivery Date: 2018-07-03

Muslim Family Courts Ordinance, 1985

[XVIII of 1985]

 

Section 17

 

As the learned Judge of the Adalat has no jurisdiction to hear the appeal arising out of the judgment and decree passed by a Family Court, the judgment and decree passed by the learned Judge of the Adalat are void. Under the above circum­stances, the case is sent back on remand to the concerned District Judge for hearing the appeal afresh by the competent Court of jurisdiction as per section 17 of the Family Courts Ordinance, 1985.

 

Adhir Das vs Arati Rani Das 11 BLC 86.

 

697

Muslim Family Laws Ordinance, 1961

Citation: 16 BLC 166, 16 BLC 10, 13 BLC 327

Case Year: 1961

Subject: Muslim Family Laws

Delivery Date: 2018-07-03

Muslim Family Laws Ordinance, 1961

[VIII of 1961]

 

Section 5(e)

 

Guardianship and Custody of Children—Admittedly since 5-4-2009, children are in custody to the plaintiff and there is no allegation against their welfare. It is true that in Muslim Law father if alive is the natural guardian of the persons and property of his minor child. He does not require an order of the Court to support his right to act as guardian in any matter, but when the Court is satisfied that it is for welfare of children that an order should be made for their custody the Court may make an order accordingly. In such view of facts, the parties were directed to maintain status quo in respect of custody of children.

 

Abdul Quddus vs Syed Moinul Ahsan Sajjad 16 BLC 166.

 

Section 7

 

The provision of section 7(1) of the Ordinance of 1961 only provides for giving a notice of Talaq to the Chairman and a copy thereof to the wife and sub-section 2 of section 7 makes the position further clear by providing a punishment for contravention of provisions of sub-section (1) of section 7. The only implement to immediate effectiveness of the divorce is information to the Chairman and the forming of the Conciliation Council. From the alone provision of law it is clear that the mere absence of communication of divorce notice to the Chairman under section 7(1) of the Ordinance, 1961 does not make the divorce invalid.

 

Nurul Islam vs Nur Ayesha Begum 16 BLC 10.

 

Section 7

 

Consistent view of the superior court is that non-compliance of provision of section 7 will render divorce ineffective. Unless there was compliance of section 7, which is a mandatory provision of law, no divorce can be effective as per section 7 of the Muslim Family Laws Ordinance.

 

Nur Nabi vs Salima Akhter Doly 13 BLC 327.

698

Muslim Marriages and Divorces (Registration) Act, 1974

Citation: 14 BLC (AD) 189

Case Year: 1974

Subject: Muslim Marriages and Divorces (Registration)

Delivery Date: 2018-07-03

Muslim Marriages and Divorces (Registration)

Act, 1974

 

Section 4

 

As it appears that the High Court Division discharged the Rule holding that as held in the case of Kazi Emanuddin Bhuiyan vs Government of Bangladesh, 12 BLC (AD) 134, and in the case of Raisuddin vs Bangladesh 51 DLR (AD) 152, the vires of section 4 of the Act of 1974 and the Rules 3, 4 and 10 of the Rules of 1975 were challenged and the Appellate Division, considering various decisions pronounced by both the Divisions of the Supreme Court, answered the question in the negative and refused leave holding that the provisions of the second proviso to section 4 of the Act of 1974 as also Rules 3, 4 and 10 of Rules of 1975 are not in any way violative of the fundamental rights guaranteed under the Constitution.

 

Bazlur Rahman vs Bangladesh 14 BLC (AD) 189.

 

Section 4

 

In the case of Kazi Md Amirul Islam vs Secretary Ministry of Law, Justice and Parliamentary Affairs reported in 1996 BID (AD) 110, this Division had the occasion to deal with the second proviso to section 4 of the Act of 1974 and Rule 10 of the Rules of 1975 as amended on 19-1-1993, wherein the Appellate Division has held that the Government had the power under the second proviso to section 4 of the Act of 1974 to extend, curtail or otherwise alter the limits of any area. The petitioner's licence as a Nikah Registrar has not at all been revoked/affected but under the second proviso of section 4 of the said Act, this area has been curtailed which the Government is authorised under the law to do.

 

Bazlur Rahman vs Bangladesh 14 BLC (AD) 189.

699

Muslim Marriages and Divorces Registration Rules, 1975

Citation: 8 BLC 34, 10 BLC (AD) 134, 9 BLC (AD) 248

Case Year: 1975

Subject: Muslim Marriages and Divorces Registration

Delivery Date: 2018-05-20

Muslim Marriages and Divorces

Registration Rules, 1975

 

Rules 3, 4, 5, 6, 10, 18, 19 & 34

 

Petitioner has challenged the second proviso to section 4 of the Muslim Marriages and Divorces (Registration) Act, 1974 and the Muslim Marriages and Divorces (Registration) Rules, 1975 particularly Rules 3, 4 and 10 and the order dated 3-2-2000 appointing respondent No. 6 as Nikah registrar for three Unions of his Nikah Registration area and also to strike down the second proviso to section 4 of Act No. LII of 1974 and the Rules framed thereunder.

 

The existing Rules of 1975 is inept, in cohesive, inadequate, ambiguous and ineffective having tendency to pick and choose policy, arbitrariness, absurdities and require to be remodeled and redrafted in the given situation and demand of time with sound thought and modern look with reference to Articles 10, 28(2) 29(2) 27, 31 and 40 of the Constitution and the warrant of Procedure. Thus the Muslim Marriages and Divorces (Registration) Rule, 1975 is struck down being unconstitutional.

 

Ruhul Mannan Helali. vs Bangladesh 8 BLC 349.

 

Rules 4, 5 and 10

 

The Government is empowered to extend, curtail or otherwise alter the area of jurisdiction of a Nikah Registry subject to the maximum area provided in the Rules.

 

Kazi Imamuddin Bhuiya vs Government of Bangladesh and others 10 BLC (AD) 134.

 

Rule 10

 

On the establishment of the Gafargaon Municipality the area which was previously a part of No. 4 Saltia Union Parishad became the area of the Gafargaon Municipality. The appointment of the appellant as Nikah Registrar was in respect of new area which had no reference to or connection with the area wherein the respondent 1 is acting as Nikah Registrar. The appellant has been appointed as Nikah Registrar of the area of the newly established Municipality. No area of the respondent 1 wherein he is acting as Nikah Registrar after the formation of the Gafargaon Municipality has been curtailed.

 

Saiful Islam (Md) vs Md Abdur Rahim and other 9 BLC (AD) 248.

700

Narcotics Control Act, 1990

Citation: 11 BLC (AD) 26

Case Year: 1990

Subject: Narcotics Control

Delivery Date: 2018-07-03

Narcotics Control Act, 1990

[XX of 1990]

 

Sections 2(Kha), 9 and 10(Ga)

 

There is absolutely no truth as to the allegation of the limit of use of alcohol or rectified spirit as a raw material in the preparation and formation of the Homeopathic medicine under the provisions of Drugs Act, 1940 or the Drugs (Control) Ordinance, 1982 or no such right of use has been taken away by the Narcotics Control Act, 1990.

 

Bangladesh Homeopathic Medicine Manufacturers Associa­tion vs Bangladesh 11 BLC (AD) 26.

 

701

National Assembly (Reserve Seats for Women Members) Election Act, 2004

Citation: 11 BLC (AD) 156

Case Year: 2004

Subject: National Assembly (Reserve Seats for Women Members) Election

Delivery Date: 2018-07-03

National Assembly (Reserve Seats for Women Members)

 Election Act, 2004

[XXX of 2004]

 

Sections 3, 4, 5, 6 and 7

 

The Act providing procedure for holding the election to women reserved seats, is an ordinary statute enacted following the legislative procedure in order to materialise the provision of Article 65(2) of the Constitution as contemplated therein, whereas amend­ment of the Constitution has been done in the case of Article 65(3) following the prescribed Constitutional procedure substituting utmost or similar provision as aforesaid which has been in existence since its commencement and does not alter the basic structure and essential feature of the Constitution and became part of the Constitution. The validity of the impugned Act providing modality, methodologies and procedure for the election to the women reserved seats in keeping with the mandate, purpose and object of the amendment to the Constitution in Article 65(3), if judged by the touchstone of the Constitution, it will be seen that the same is not inconsistent or repugnant or ultra vires the Constitution or offending any law.

 

Farida Akhter vs Bangladesh represented by the Secretary, Cabinet Division 11 BLC (AD) 156.

702

Negotiable Instruments Act, 1881

Citation: 16 BLC 150, 14 BLC 259, 17 BLC (AD) 39, 13 BLC 686

Case Year: 1881

Subject: Negotiable Instruments

Delivery Date: 2018-07-03

Negotiable Instruments Act, 1881

[XXVI of 1881]

 

Section 131

 

A duty is cast upon a banker, before opening a new account of a customer to adhere to the rules and practices prevailing with regard thereto. And especially as a collecting bank it should take into consi-deration the state of the account to make sure that it is free from doubt. The central bank itself found irregularity with opening of the account and asked the defendant by a letter to refund the proceeds collected against the forged cheques. With the proven fact that the cheques are forged, recipient of the forged cheques is althrough untraced and the address given is false, the conduct of the Defendant-Appellant with its fellow banker does not seem to conform the law, practices and tradition of banking business. The defendant cannot escape its liability to pay back the money collected by it against cheques found forged. The impugned judgment and decree passed by the trial court is hereby affirmed.

 

Islami Bank Bangladesh Ltd. vs Agrani Bank 16 BLC 150.

 

Sections 138 and 138A

 

On perusal of section 138A of the Act as amended on 9-2-2006 and on consideration of the whole enactment, it appears that the Negotiable Instruments Act being a procedural law, there is no bar in giving its effect retrospectively. The requirement of 50% deposit of cheque amount at the time of filing an appeal in the Court under the provisions of section 138A of the Act is not unconstitutional or violative to the provisions of the Constitution. Hence, question of violation of the right as guaranteed under Articles 27,31,40 and 42 of the Constitution does not arise at all.

 

Jahid Faisal vs Bangladesh 14 BLC 259.

 

Section 138(1) (b)

 

Whether the notice was a demand notice or not as contemplated under section 138 (1) (b) of the Act is a disputed question of fact which could not be decided by the High Court Division while exercising jurisdiction under section 561A of the Code.

 

Rashedul Alam Chowdhury vs ASM Shahajahan 17 BLC (AD) 39

 

Sections 138, 138A and 141(c)

 

If a case is tried by Court of Session, the cause of justice will be better served as the Sessions Courts are manned by Senior Judicial Officers unlike the Courts of Magistrate. The petitioner should rather be happy as his case is being tried by a senior judicial officer well versed in criminal law. By the amendment of clause (C) of section 141 of the Negotiable Instruments Act, the petitioner is, indeed, benefited. Therefore, the petitioner cannot have any grievance by the transfer of the case from the Court of Magistrate to the Court of Session.

 

Mere filing of an appeal does not operate as stay of the judgment of conviction and sentence passed by the trial Court. The appellate Court may or may not stay the operation of judgment of conviction and

sentence and may not enlarge the accused on bail. In that event the accused will have to pay the entire amount of the dishonoured cheque(s). Therefore, depositing 50% of the face value of the dishonoured cheque cannot be said to be illegal in case of a pending case ended up in conviction and sentence. It is now well settled that a procedural law always takes effect retrospectively. In the case in hand, section 138A and clause (C) of section 141 of the Negotiable Instruments Act being procedural law, the latest amendments to those sections shall apply to the case of the petitioner. The contention that the insertion of section 138A and amendment of clause (C) of section 141 of the Negotiable Instruments Act is ultra vires of the Constitution could not be substantiated.

 

AHN Kabir vs Bangladesh 13 BLC 686.

703

Non-Agricultural Tenancy Act, 1948

Citation: 12 BLC 465

Case Year: 1948

Subject: Non-Agricultural Tenancy

Delivery Date: 2018-07-03

Non-Agricultural Tenancy Act, 1948

[XXIII of 1948]

 

Section 24

 

The ingredients of section 24 of the Non-Agricultural Tenancy Act and those of section 96 of the State Acquisition and Tenancy Act are different. Some of these distinctions are that while section 96 confers right of pre-emption on the holder of land contiguous to the land transferred, no such holder of land can exercise the right of pre­emption under section 24 of the Non-Agricultural Tenancy Act which merely confers the right of the pre-emption on a non-agricultural tenant in respect of non-agricultural land.

 

Sadhana Rani vs Parimal Kumar Sarker 12 BLC 465.

704

Non-Government Secondary and Higher Secondary School Teacher's Service Terms and Conditions, 1979

Citation: 17 BLC 796

Case Year: 1979

Subject: Non-Government Secondary and Higher Secondary School Teacher's Service Terms and Conditions

Delivery Date: 2018-07-03

Non-Government Secondary and

Higher Secondary School Teacher's

Service Terms and Conditions, 1979

 

Section 14(1)

 

The petitioner was ever heard in person and the reply given by the petitioner was at all considered. Why this inescapable duty which lies upon the Appeal and Arbitration Committee was not performed. It baffles us when we see the order of dismissal of the petitioner had been approved by the Appeal and Arbitration Committee without considering that the decision of the Managing Committee of the School in respect of the petitioner's dismissal was not at all lawfully made.

 

Joynul Abedin vs Education Board, Rajshahi 17 BLC 796

705

Out Sourcing Rules, 2008

Citation: 16 BLC 633

Case Year: 2008

Subject: Out Sourcing

Delivery Date: 2018-07-03

Out Sourcing Rules, 2008

 

Rules 3(ka), 3(kha), 3(ga), 3(gha) and 7

 

The respondents under the existing Service Rules of the Company are not authorized to engage any worker/employee through out sourcing contract in accordance with the Out Sourcing Rules, 2008 and, as such, the impugned Tender Notice issued on 17-2-2010 and published in the Daily Samakal on 18-2-2010, inviting Tender for engaging workers/employees through out sourcing contract is hereby declared to have been issued without lawful authority and is of no legal effect.

 

Jashim Uddin vs Ministry of Energy and Mineral Resources Division 16 BLC 633

706

Paribesh Sangrakkhan Ain, 1995

Citation: 11 BLC 72

Case Year: 1995

Subject: Paribesh Sangrakkhan

Delivery Date: 2018-07-03

Paribesh Sangrakkhan Ain, 1995

[I of 1995]

 

Sections 4(3) and 12

 

The impugned notices requiring the petitioner company to relocate its Re-Rolling Mills are, viola tive of section 4(3) and its first Proviso. Besides, the impugned notices are discriminatory, malafide, without jurisdiction and also malice in law and are liable to be struck down.

 

Sarder Steel Re-Rolling Mills Ltd vs DG, Environment Directorate and ors 11 BLC 72.

707

Parliament Secretariat Act, 1994

Citation: 11 BLC 599

Case Year: 1994

Subject: Parliament Secretariat

Delivery Date: 2018-07-03

Parliament Secretariat Act, 1994

[VIII of 1994]

 

Sections 10, 11 and 21

 

In section 11 of the Act of 1994, it has been stipulated that the service conditions of the employees are to be determined by the existing laws for the employees of the Republic and the seniority is one of the service conditions and, as such, the framing of such Regulations by respon­dent No. 2 exercising the power conferred under section 21 of the Act 8 of 1994 is a gross violation of the provisions of section 11 of the said Act. Furthermore, while exercising the sub-ordinate legislation, no Rules or by-laws can be framed giving retrospective effect and, in the instant case, retrospective effect has been given in the impugned notification that relates to seniority. Considering facts and circumstances discussed hereinabove, the provisions of Articles 65, 79 of the Constitu­tion of the People's Republic of Bangladesh, the provision of Act 8 of 1994 as well as the Surplus Public Servant Ordinance, 1985 and the decisions as referred to, the impugned amendment of Regulation 7 of the Recruit­ment Regulations, 1994, the Padonnati Jeshthata Nitimala, 2001 and the absorption of the respondent Nos. 12 to 32 have been done without lawful authority and are declared illegal and are of no legal effect.

 

Ruhul Amin (Md) vs Bangladesh 11 BLC 599.

708

Partition Act, 1893

Citation: 16 BLC (AD) 62, 14 BLC (AD) 103, 15 BLC 204

Case Year: 1893

Subject: Partition Act

Delivery Date: 2018-07-03

Partition Act, 1893

 

Section 2

 

The High Court Division has rightly found that the suit is maintainable in its present form also found that the suit property was a part of joint property of the Hindu joint family which has correctly came to the hand of Govinda Banik through amicable settlement and that ejmali property situated in any part of the world may be brought in the hotch-pots of the suit according to Section 2 of the Partition Act, 1898.

 

Provas Chandra Banik vs Naresh Chandra Banik 16 BLC (AD) 62.

 

Section 4

 

The High Court Division found that the suit land under partition was not a dwelling house

and, as such, section 4 of the Partition Act was not applicable in the case as claimed by the defendant Nos. 1 and 2 of the suit. The High Court Division also found that the trial Court rightly decided the matter in controversy and hence did not commit any error of law resulting in an error in the decision occasioning failure of justice in passing the judgment and decree.

 

Sohrab AH Molla vs Md Ataur Rahman Talukder 14 BLC (AD) 103.

 

Section 4

 

The courts below showed no respect or regard to consider the judgments of the High Court Division as well as the Appellate Division and disregarded the findings of the Appellate Division in which it was held that the amendment to prayer for preemption under section 4 of the Partition Act is allowable and on legal basis and in the plaint the matter was amended and applica­tion under section 4 was entertained but the courts below found the application under section 4 of Partition Act is not maintainable and acted illegally and showed disregard to the Higher Courts of the Country.

 

Ahsanul Bari vs Md Shaful Alam 15 BLC 204.

709

Patents And Designs Act, 1911

Citation: 15 BLD(HCD)50

Subject: Patents And Designs

Delivery Date: 1970-01-01

 

 

Patents And Designs Act, 1911

 

Section—51A

Cancellation of registered design and copyright

Section 51A of the Patents and Designs Act provides that any person interested in the matter may apply to the High Court Division for cancellation of the registration of a design on the ground that the design is not a new or an original one. In the instant case, the questioned design not being a new and original one, the Controller of Patents and Designs committed illegality in registering the design and as such it is liable to be cancelled.

Abdul Karim and another Vs. Messrs Khan Electronics Ltd., Dhaka and others, 15 BLD(HCD)50

Ref: Ram Sahai Vs. Angroo, A.I.R. 1992 All) 496; Karachi Textile Works Vs. Multan Handloom Factory, PLD 1955 (Karachi) 351; The Elgin Mills Company Vs. The Muir Mills Company, I.L.R. 1895 (All) 490—Cited.

 

710

Payment of Wages Act, 1936

Citation: 12 BLC 713

Case Year: 1936

Subject: Payment of Wages

Delivery Date: 2018-07-03

Payment of Wages Act, 1936

[IV of 1936]

 

Sections 7(2) and 10

 

The provisions of sections 7(2) and 10 of the Payment and Wages Act clearly provide that deduction from the wages of an employee can only be made in accordance with the provisions of the Act and that no amount can be deducted from an employee's wages on account of damage or loss without giving him an opportunity of showing cause against the said deduction. The huge amount was however deducted from their wages just at the time of their retirement on the plea of shortfall of cargo from time to time during their employment. Such situation is totally in breach of the rules of natural justice and unfair to the concerned respondents of the cases. This also finds support from a number of unreported decisions of this Court. Both the Rules are discharged.

 

Bangladesh Inland Water Transport Corporation vs Member, Labour Appellate Tribunal 12 BLC 713

711

Pension and General Provident Fund Rules, 1987

Citation: 14 MLR (2009) (AD) 81

Case Year: 1987

Subject: Pension and General Provident Fund

Delivery Date: 2018-03-18

Pension and General Provident

Fund Rules, 1987

 

Rule 5(kha)—Declared redundant and has no bearing on the subject matter—

The appellant an ex-army personnel after being absorbed in the service of the Bangladesh Oil, Gas and Mineral Resources Corporation was serving on deputation in the Bakhrabad Gas system which has no authority to retire him on completion of 25 years service. It is only the Government which is empowered under section 9(2) of the Public Servants (Retirement) Act, 1974 to retire a public servant. Rule 5(kha) of the Pension and General Provident Fund Rules. 1987 is declared redundant and has no bearing on the subject. B. Akrnm Ahmed Khan Chowdhury (Capt. Reid.) Vs. Bangladesh Oil, Gas and Mineral Resources Corporation, represented by its Chairman and another 14 MLR (2009) (AD) 81.

712

Pilotage Ordinance (EP Ordinance), 1969

Citation: 11 BLC (AD) 211

Case Year: 1969

Subject: Pilotage Ordinance (EP Ordinance)

Delivery Date: 2018-07-03

Pilotage Ordinance (EP Ordinance), 1969

[v of 1969]

 

Section 3

 

The allegation of MV Shainpukur-1's negligence in plying the vessel was not established by the evidence of the kind whereupon placing reliance the Court would have been able to arrive at the finding that collision took place because of the negligence of the defendant No.l's vessel MV Shainpukur-1. The plaintiffs asserted that collision took place at 5-30 AM on 13-5-1986. On consieration of the evidence on record it appears that plaintiffs by credible evidence have failed to establish that collision took place at 5-30 AM. Since the evidence brought on record by the plaintiffs is not of the kind where from it can definitely be arrived at the finding that because of the negligence of MV Shainpukur-1 accident took place, in that state of the matter the High Court Division was quite correct in holding that plaintiffs failed to establish that the accident took place because of the negligence of the vessel MV Shainpukur-1.

 

Chalna Carriers and Fibres Ltd vs Shainpuknr Navigation Ltd 11 BLC (AD) 211.

713

Police Officers (Special Provisions) Ordinance, 1976

Citation: 14 MLR (2009) (AD) 283, 12 MLR (2007) (HC) 241

Case Year: 1976

Subject: Police Officers

Delivery Date: 2018-03-18

Police Officers (Special Provisions)

Ordinance, 1976

 

Section 3 and 4— Overriding effect of the Ordinance over all other law and regulations—

Proceedings under the Ordinance, 1976 against the accused police officers shall have to be initiated and concluded in the jurisdiction where the offence is committed. The provisions of the Ordinance,shall have effect over the Police regulations. Therefore Regulation 859 has no manner of application to the cases falling within the purview of the Ordinance, 1976 notwithstanding the transfer of the accused from one jurisdiction to the other. Government of Bangladesh, represented by the Secretary, Ministry of Home Affairs and others Vs. Md. Anwantl Islam 14 MLR (2009) (AD) 283.

 

Section 7A— Power of reviewing the order passed in revision is not available—

Section 7A of the Police Officers (Special Provisions) Ordinance, 1976 does not empower the Government respondent No. 1 to review its decision passed in revision and as such the impugned order so passed being coram non-judice is struck down. Idris Mahmud (Md.) Vs. Government of Bangladesh, represented by the Secretary, Ministry of Home Affairs and others 12 MLR (2007) (HC) 241.

714

Posts and Telegraphs Manual Appendix 24

Citation: 13 BLC (AD) 58

Subject: Posts and Telegraphs Manual Appendix 24

Delivery Date: 2018-07-03

Posts and Telegraphs Manual Appendix 24

 

Rules 21 and 24

 

The accepted principle is that seniority may be one of the grounds along with service record, efficiency and  other things. In the instant case, it is seen that opposite parties have been promoted to the post of Accounts Officer/Assistant Director (Accounts) on being recommended for promotion by the departmental promotion committee as well as by the Public Service Commission. In the background of the discussion, it appears that no error was committed by the AAT in allowing the appeals and thereby in setting-aside the judgment and order of the AT.

 

Imdad Hossain vs Bangladesh 13 BLC (AD) 58.

715

Power Development Board Store Manual Rules

Citation: 15 BLC 600

Subject: Power Development Board Store Manual Rules

Delivery Date: 2018-07-03

Power Development Board Store Manual Rules

 

Rule 22

 

The Store Manual, particularly the rule 22 of the manual is a guide line, its deviation might be an irregularity but the contract which has been entered into with the knowledge of the concerned Minister and all other higher officials of the Board cannot be said illegal for deviation from the guideline. The Court below has failed to appreciate this aspect of the case, with the above we are of the view that the judgment and decree passed by the Joint District Judge, 2nd Court, Chittagong on 24-11-1981 is not proper and we are inclined to interfere with the same and accordingly the same is set-aside. The order of cancellation of delivery order dated 8-6-1987 contained in Memo No. Chittagong-/3-225/2041 is cancelled and the delivery order dated 5-5-1987 vide Memo No. DCTG/3-225/1808 is hereby restored.

 

Bangladesh Karma Sangsthan Sangstha vs Power Develop­ment Board 15 BLC 600 Ordinance [Hi of 1991]

716

Practice and Procedure

Citation: 17 BLC 718, 16 BLC 248, 16 BLC 545, 16 BLC 830

Subject: Practice and Procedure

Delivery Date: 2018-07-03

Practice and Procedure

 

There is international practice of renting containers which allows free times to the consignee for releasing the goods from the containers and demurrage is being imposed after such free time for detention of the container till the actual release of the imported goods inside it.

 

Evergreen Marine vs TK Chemical Ltd 17 BLC 718

 

—Document created after the date of cause of action cannot be considered in a pre­emption case to prove that the right to pre­emption has been discharged.

 

Syed Ghulam Shahriar vs Md Abdur Mannan 16 BLC 248

 

—Arriving at the findings of guilt mecha­nically upon extrinsic value of evidence is deprecated. Utmost judicial care in assessing evidence is stressed upon to protect innocent accused from suffering punishment and lamentable loss.

 

Mozammel vs State (Criminal) 16 BLC 545.

 

—Now-a-days we are deciding disputed political issues without considering these are the business of

Parliament which represents the entire nation and its citizens. We are pleasing a master at the expense of the institution. Per Sharif Uddin Chaklader, J (delevering the main judgment).

 

MA Hashem vs Shamsul Kabir Humayun Reza 16 BLC 830.

717

Pre-Shipment Inspection Order, 1999

Citation: 17 BLC 551

Case Year: 1999

Subject: Pre-Shipment Inspection

Delivery Date: 2018-07-04

Pre-Shipment Inspection Order, 1999

 

Article 7(d) and 8(5)

 

An application of Articles 7(d) and 8(5) of the Order to the facts reveals that a right to a due, proper and final assessment of the goods accrued to the petitioner on the 100% physical examination of the goods conducted on 3-3-2002 resulting in the Physical Examination Report of that date confirming and affirming the accuracy of the CRF Certificate's assignment of the appropriate HS Code to the goods and the valuation thereof. The moment that right attached to the petitioner, it is found, it became obligatory upon the respondents to proceed as per the dictates of Article 8(5) and no more.

 

Aquamarine Distributions Ltd vs Bangladesh 17 BLC 551.

718

Pre-shipment Inspection Rules, 2002

Citation: 15 BLC 478, 13 BLC 883, 17 BLC 163, 16 BLC 193, 17 BLC 249, 17 BLC 86

Case Year: 2002

Subject: Pre-shipment Inspection

Delivery Date: 2018-07-04

Pre-shipment Inspection Rules, 2002

 

Rule 13(2)(3)

 

In all these cases almost this Division unequivocally held that every assessment either Income Tax or VAT or Excise presupposes an order upon a final assessment. The Customs Authority is hereby directed to finally assess the goods and to duty in accordance with Customs Valuation Rules, 2000 and taking into consideration of the documents and papers, if any, that may be produced on behalf of the petitioners and shall return back the bank guarantees if the amount (if any) that becomes due after such final assessment is paid in cash within period of 2 (two) months from the date of receipt of this order positively.

 

Mozahid Zamil vs National Board of Revenue 15 BLC 478.

 

Rule 13

 

So far the fact of the present case is concerned, respondent No. 5, the PSI agent acted as required under the LC issued on 22-4-05 and furnished its certificate on 26-8-2005, as such, the contention of the learned Advocate for the petitioner that it acted beyond its authority has got no substance. Rather, it is apparent that the PSI agent acted within its authority in making its pre-shipment inspection in respect of the imported consignment of goods.

 

Nurul Islam vs National Board of Revenue 13 BLC 883

 

Rule 22(2)

 

The petitioners instead of taking recourse to that "Birod Nispotti Committee" obtained the present Rules and got release of the imported goods by furnishing bank guarantee and depositing cash for the difference of amount due to changing of the HS Code. Ends of justice would be met if these matters be sent before the Review Committee for proper assessment of the same.

 

Anwarul Haque vs National Board of Revenue 17 BLC 163.

 

Rule 23

 

Rule 23 of the PSI Rules, 2002 provides that the importer can file review application after release of the goods if he is aggrieved against the CRF certificate issued by the PSI agency. So the petitioner is at liberty to file review application within 21 days after release of the goods.

 

Mikasa Enterprise vs Government of Bangladesh 16 BLC 193.

 

Rules, 23(2)

 

For all practical purpose an importer under PSI scheme shall have to ventilate his grievance in terms of Rule 23(2) of the Rules, read with its other relevant rules. Appeal under section 193(C)(2) of the Act can only be preferred against the decision of the review committee given under rule 23 of Rules and, as already observed that Rule 13 of Valuation Rules 2000 shall apply only in case of importers who are not under PSI scheme,

 

LR Khan (Md) vs Customs Excise and VAT Appellate Tribunal 17 BLC 249

 

Rules 23(2)(3) and 22(4)

 

Review Committee should have decided the fate of the case on merit in accordance with law. This is absolutely shirking the responsibility imposed by law upon the review committee. On doing so it has indeed violated the mandatory provi-sions of section 23 (2)(3) read with Rule 22 (4) of PSI Rule, 2002. PSI Rule 2002 has elaborated the mandatory duty to be performed by the review committee. They cannot sit idle over the matter. The committee shall have to Act in accordance with law applicable upon them without any delay.

 

SS Enterprise vs Government of Bangla-desh 17 BLC 86.

719

Premises Rent Control Ordinance, 1991

Citation: 11 BLC 614, 11 BLC 614, 14 BLC 360, 15 BLC 639, 14 BLC 339,

Case Year: 1991

Subject: Premises Rent Control

Delivery Date: 2018-07-04

Premises Rent Control Ordinance, 1991

[III of 1991]

 

Section 18

 

It appears that 150 years old dilapidated suit premises may collapse at any moment for which Rajshahi Development Authority and Rajshahi City Corporation on several occasions requested the plaintiffs to demolish the suit premises and lastly, the plaintiffs deposited the demolision cost to the Rajshahi City Corporation, who also fixed the date of demolision of the suit premises but the same was not materialised owing to pendency of the suit. Plaintiffs also obtained approved plan for constructing market and commercial building which proves that the suit premises is bonafide required by the plaintiffs.

 

Iftekhar Ali (Md) vs Sri Sailendra Nath Roy 11 BLC 614.

 

Section 18

 

It appears that 150 years old dilapidated suit premises may collapse at any moment for which Rajshahi Develop­ment Authority and Rajshahi City Corpo­ration on several occasions requested the plaintiffs to demolish the suit premises and lastly, the plaintiffs deposited the demolision cost to the Rajshahi City Corporation, who also fixed the date of demolision of the suit premises but the same was not materialised owing to pendency of the suit. Plaintiffs also obtained approved plan for constructing market and commercial building which proves that the suit premises is bonafide required by the plaintiffs.

 

Iftekhar AH (Md) vs Sri Sailendra Nath Roy 11 BLC 614.

 

Section 18

 

Admittedly, the plaintiff brought allegation against the defendant-opposite-party that he was a defaulter with regard to payment of rent for the period of December, 1998 to February, 1999 although, the defendant claims that the plaintiff on protest did not pay the rent receipt for that period after taking rent. In this connection, on assessment of the entire evidence on record I find that the defendant did not or could not adduce any documentary or corroborative evidence to prove that he was not a defaulter with regard to payment of rent for the period of December, 1998 to February, 1999.

 

Khandaker Mahmiid Hasan vs Amirul Islam 14 BLC 360.

 

Sections   18(1),   18(5)   and   19(1)

 

Admittedly Taka 40,000 paid by defendant as advance is still lying with the plaintiff. Until entire amount of advance money taken by plaintiff at the time of creating subsequent tenancy, was adjusted, the defendant could not be said to have defaulted in paying rent within the meaning of aforesaid sections. As long as the plaintiff had the unadjusted amount in his hands, he could have adjusted it towards the payment of rent for the months of Sravan, 1402 BS. In view of the Provisions of section 18(5) of the Act, 1991 which do not seem to have been contravened by the defendant, no default appears to have been made by him in paying the rent for the aforesaid period.

 

Radha Shyam Barker vs Nani Gopal Sen 15 BLC 639

 

Section 19

 

Defendant-opposite-party in spite of clear knowledge of deed of exchange, and, also, of getting of suit shop/premises in saham of Abu Md Shah Newaz and, also, of the deed of conveyance executed and registered on 26-11-2000 by Abu Md Shah Newaz in favour of plaintiffs-petitioners and, also, in spite of receipt of Attornment Notice, Exhibit-11 and Notice under section 106 of Transfer of Property Act did neither attorn nor admit plaintiffs-petitioners as owner and landlord of suit shop-premises and did not pay rent to them and, thus, became habitual defaulter rendering him liable to be evicted from suit shop/premises.

 

Payment of rent by defendant-petitioner only on 6-3-2006 and 6-4-2006 with Rent Controller is no lawful payment of rent and defendant-opposite-party cannot save himself from being evicted from suit shop/ premises and he has rendered himself liable to be evicted from suit shop/premises.

 

Amina Begum BA B.Ed vs Md ]obayer Alam Barker 14 BLC 339.

 

Section 19(l)(ka)

 

Neither the House Rent Controller nor the Court of appeal below were authorised by law to decide as to whether the petitioner was a defaulter which is the subject to be decided in a regular suit for eviction, if instituted by the opposite parties. The House Rent Controller being a conduit pipe, he was required to allow the petitioner to deposit the rent if he deposits the monthly rent in compliance with the provisions of section 19(l)(ka) of the Act, 1991.

 

Ismail Hossain vs Syedur Rahman Molla 15 BLC 342.

720

Printing Presses & Publications (Declarations of Registration) Act, 1973

Citation: 17 BLC 689, 17 BLC 364,

Case Year: 1973

Subject: Printing Presses & Publications (Declarations of Registration)

Delivery Date: 2018-07-04

Printing Presses & Publications

(Declarations of Registration) Act, 1973

[XXIII of 1973]

 

Sections 7, 12(2) (3) (4) and 16

 

After cessation under section 16 of the Act there is no provision for revoking the same under the Act, 1973. But in case of declaration under section 7 in which Form B has to be filled up for becoming a publisher section 12(2) has a role to play. If the District Magistrate refuses to authenticate the order of declaration under section 7 the incumbent can prefer appeal and application as the case may before the Appellate Authority in terns of section 12(3) & (4) of the Act but there is no provision for revocation once a cessation takes place under section 16 of the Act. To simplify in other words, there is no provision in the Act for revoking the order of Cessation from the post of publisher.

 

Nayeemul Islam Khan (Md) vs DC, Dhaka 17 BLC 689

 

Section 9(3)(b)

 

In view of section 9(3)(b) of the Act the declaration so made in respect of the weekly newspaper has become null and void. Consequently, issuance of the impugned memo cannot be said to have suffered from any illegality whatsoever.

 

Advocate Taimur Alam Khandaker vs Bangla-desh 17 BLC 364

 

Section 9(3)(b)

 

Since the petitioner has option to make and subscribe a fresh declaration he is at liberty to make the prayer for a fresh declaration.

 

Advocate Taimur Alam Khandaker vs Bangladesh 17 BLC 364

721

Private Forests Act, 1945

Citation: 12 BLC (AD) 215

Case Year: 1945

Subject: Private Forests

Delivery Date: 2018-07-05

Private Forests Act, 1945

 

Sections 7 and 11

 

Since sections 7 and 11 are designed to divest the owners of the suit lands of their ownership and possession in the suit lands the same should be strictly interpreted and applied. The defendant-Government has failed to discharge its burden of proof that the suit lands were taken over and vested in the Forest Department of the Government by issuing required show cause notices on the owners of the suit lands inviting objection and on due consideration of the objections, if any, raised by the owners.

 

Government of Bangladesh represented by the Secretary, Ministry of Environment and Forests vs Md Ayub AH 12 BLC (AD) 215.

 

722

Private Universities Act, 1992

Citation: 17 BLC (AD) 84

Case Year: 1992

Subject: Private Universities

Delivery Date: 2018-07-05

Private Universities Act, 1992

[XXXIV of 1992]

 

Sections 3, 6 and 7

 

Government and the University Grants Commission which enjoy the exclusive domain to give approval for the establishment of the Private Univer­sity at any place in Bangladesh and whether in exercise of their power under the prov­isions of the Act, 2010, they can accord permission for establishing independent outer campuses is a matter to be decided by them.

 

University Grants Commission vs University of Information Technology & Science 17 BLC (AD) 84

 

723

Provident Fund Act, 1908

Citation: 16 BLC 752

Case Year: 1908

Subject: Provident Fund

Delivery Date: 2018-07-05

Provident Fund Act, 1908

[XIX of 1908]

 

Sections 3 and 8

 

The petitioner is an employee of Rupali Bank Ltd. and neither it was in the schedule of the Provident Fund Act, 1925 nor was it subsequently included by notification and hence the provisions of sections 3 and 8 of the Provident Fund Act are not applicable in case of petitioner. Section 60(1)(K) of the Code of Civil Procedure is also applicable to compulsory deposits to which Provident Fund Act is applicable and in such legal positions the Artha Rin Adalat has legally attached the provident fund and gratuity of the petitioner.

 

AA Manzurul Plaque vs BSIC Bangladesh Ltd 16 BLC 752.

724

Public Corporations (Management Co-ordination) Ordinance, 1986

Citation: 12 BLC 730, 15 BLC 761

Case Year: 1986

Subject: Public Corporations (Management Co-ordination)

Delivery Date: 2018-07-05

Public Corporations (Management Co-ordination) Ordinance, 1986

[XLVIII of 1986]

 

Sections 2(e) and 14A

 

It transpires that section 14A of Public Corporations (Management Co-ordination) (Amendment) Act, 1994 embraces each of the petitioners in all the writ petitions. Therefore, they are supposed to go for retirement on their attain­ment of 60 years of age and not 57 years of age as contemplated by the authority con­cerned. Accordingly, the authority concerned are directed to allow the petitioners to carry on their respective jobs until they attain the age of 60 years if they have not already attained the same age.

 

Shaheb All vs Platinum Jubilee Jute Mills Ltd 12 BLC 730.

 

Section 14A

 

For the purpose of retire­ment of the workers working under the Corporation specific provision has been laid down under Section 14A of the Public Corpo­rations (Management Co-ordination) Ordi­nance, 1986 and, as such, we find that Section 14A Public Corporations (Management Co­ordination) Ordinance, 1986 is applicable for the workers and employees working under the Corporation and, as such, Section 28 of the Bangladesh Labour Law, 2006 is not applicable for the retirement of the workers working under the Public Corporation. Service Rules of the Corporation will apply upon all the workers under the Corporation. The petitioner being a worker under the Corporation is entitled to serve to the Corporation up to 60th year of his age and, as such, we find that the impugned order issued by the respondent No. 4 under Memo No. UFFL/Admin-02/16/1987 dated 2-4-2008 is liable to be declared to have been passed without lawful authority and is of no legal effect.

 

Alt Azamvs Bangladesh 15 BLC 761.

725

Public Demands Recovery Act, 1913

Citation: 11 BLC 204,

Case Year: 1913

Subject: Public Demands Recovery

Delivery Date: 2018-07-05

Public Demands Recovery Act, 1913

[III of 1913]

 

Section 37

 

Since there is allegation of fraud, in such case the Civil Court has every jurisdiction to try the case and thus section 37 of Public Demands Recovery Act provides -39 that case may be brought in the civil Court in respect of any such question upon the ground of fraud is involved in the suit.

 

Abrara Begum vs Hosneara Begum 11 BLC 204.

 

Section 37

 

Since there is allegation of fraud, in such case the Civil Court has every jurisdiction to try the case and thus section 37 of Public Demands Recovery Act provides that case may be brought in the civil Court in respect of any such question upon the ground of fraud is involved in the suit.

 

Abrara Begum vs Hosneara Begum 11 BLC 204.

726

Public Procurement Act, 2006

Citation: 17 BLC 159, 16 BLC 756

Case Year: 2006

Subject: Public Procurement

Delivery Date: 2018-07-05

Public Procurement Act, 2006

[XXIV of 2006]

 

Sections 2 and 6

 

That there is provision in Act that before moving court one should exhaust the provisions but on a reading to the sections and rules we find there is no provision raising bar to file suit and suit will fail for non compliance of the laws.

 

Dhaka City Corporation vs MR Trading Co. 17 BLC 159.

 

Sections 32 and 68

 

Since the ECNEC has decided in the instant case to do direct procurement not on mechanical or economic ground as provided by section 32 (1), it has acted illegally. The impugned decision does not even show any urgent State necessity or disastrous event to justify direct procurement under section 68. The impugned decision does not come under the purview of exceptions as provided by section 32 and 68, and, as such, the impugned decision is without lawful authority and is of no legal effect.

 

Bangladesh Ship Builders Association vs Bangladesh 16 BLC 756.

727

Public Procurement Regulations, 2003

Citation: 16 BLC (AD) 9, 13 BLC 474, 11 BLC 357

Case Year: 2003

Subject: Public Procurement

Delivery Date: 2018-07-05

Public Procurement Regulations, 2003

 

Regulations 31(12)

 

It appears that in view of the decision of the Review Panel and the regulation 31(12) of Public Procurement Rules there is no scope to accept the bid in compliance with any direction to execute contract in the matter with the respondents as directed by the High Court Division. The impugned Judgment and Order by the High Court Division making the Rules absolute are set-aside.

 

Chittagong Water Supply & Sewerage Authority (CWASA) vs EPI-BFEW Consortium 16 BLC (AD) 9.

 

Regulation Nos. 50, 51, 52 and 53

 

In the instant case, it appears that the members of the Review Panel failed to appreciate this legal position of the petitioner company with that of the PCB Group of Companies in its proper perspec live, as such, it is declared that the said decision dated 5-11-2006 of the Review Panel as illegal and is of no legal effect. It is held that the tender submitted by the petitioner company is responsive.

 

Patimas International Sdn Berhad, Malaysia vs Review Panel 13 BLC 474.

 

Regulations 51 and 57(3)

 

It appears that the petitioner has filed application to the Secretary of the Ministry but under no circumstances this application can be con­sidered as it is not in accordance with Public Procurement Regulations, 2003. He has to file an application with the tender procuring entity as per Regulation 51 of the said Regulations and thereafter, he can also pray for review. The petitioner filed application with the secretary which is not in accordance with law. Further, it appears that the petitioner is an agent of the British Polar Engines, but no power, as such, has been filed before filing the writ petition before this Court that he has the power or he is an agent. He is neither coming in the proper forum nor any power of attorney has been annexed to the instant writ petition. Under these facts and circumstances, the High Court Division did not find any substance in this Rule.

 

Marine Contacts vs People's Republic of Bangladesh 11 BLC 357.

728

Public Servants (Retirement) Act, 1974

Citation: 20 BLD (AD) 230, 18 BLD(AD)142, 19 BLD (HCD) 261, 15 BLD (HCD) 341, 16BLD(HCD)357, 14 BLD (HCD) 491

Subject: Public Servants (Retirement)

Delivery Date: 1970-01-01

 

 

Public Servants (Retirement) Act, 1974

 

Sections—2(d) and 9(2)

Public servant—Authority of the Government to retire public servant in public interest after completion of 25 years service.

Bangladesh Biman Corporation Vs Ltd. Col. (Rtd) Md. Zainul Abedin and ors. 20 BLD (AD) 230.

 

Sections—4 and 9

The scheme of the retirement of the petitioners under special circumstances is outside the ambit of the Public Servant’s (Retirement) Act, 1974. It was in fact a special arrangement for those who voluntarily want to retire on getting some financial benefits. There was no compulsion on the part of any of the petitioners to accept the special scheme of retirement. The petitioners went into voluntary retirement out of their own free will and as such they cannot be allowed to turn round to say that the scheme is illegal and is violative of the provisions of the Public Servant’s (Retirement) Act. 1974.

Md. Nurul Haque Vs Govt. of Bangladesh and ors., 18 BLD(AD)142

Ref: 1949 All England Law Reports, Kings Bench Division, 724—Not applicable.

 

Section—5(3)

Since the appointment of the petitioner in the project is in fact re-employment of the petitioner in BSTI and the approval of the President having under section 5(3) of the Act has not been obtained before issuing Annexure-A, the appointment of the petitioner as Project Director was illegal, the said appointment could be cancelled by the respondent Nos. 1 and 2 and as such there is no illegality in the impugned order cancelling the reemployment of the petitioner.

Syed Nurul Hossain Vs Bangladesh, represented by the Secretary, Ministry of Industries, Dhaka and others, 19 BLD (HCD) 261.

 

Section—9 (1) (2)

Optional Retirement

Sub-Section (1) of Section 9 of the Act provides that a public servant may opt to retire from service any time after he has completed 25 years of service by giving notice in writing to the appointing authority at least 30 days prior to the date of his intended retirement while sub-section (2) of Section 9 provides that the Government may retire from service a public servant in the public interest at any time after he has completed 25 years of service without assigning any reason.

In the instant case. none of the petitioners completed 25 years of service on the date of their impugned retirement. It is also evident from the retirement order itself that it was not made in the public interest but in effecting retrenchment in the Corporation. Moreover, under sub-section (2) of section 9 of the Public Servants (Retirement) Act, 1974 the authority to order retirement vested in the Government and not in the Corporation, although the employees affected belonged to a Corporation. The impugned order of retirement is therefore illegal and without jurisdiction.

Abul Hossain and others Vs. Bangladesh Jute Corporation & ors, 15 BLD (HCD) 341

 

The Public Servant (Retirement) Act,l974 (XII of 1974) has been made applicable to the employees of the Bangladesh Biman Corporation. Even after amendment of Regulation I in 1984 there has been no corresponding amendment of Rules 3 and 4 of the Bangladesh Biman Employees (Pension and Gratuity) Rules, 1988. In the instant case the petitioner was appointed before the amendment of the Regulation No. 11 of the Bangladesh B iman Corporation Employees (Service) Regulations 1979. Before its amendment the retirement age of the Stewardess was 57 years. Therefore, the petitioner’s right to remain in service till she completes 57 years of age cannot be curtailed on the strength of a subsequent amendment which was not in existence at the time of her appointment. The reduction of the age limit of the petitioner from 57 years to 35 years on the strength of Regulation No. 11 made in 1984 does not have any sanction of law the same being violative of Article 28 of the Constitution.

Jonaba Dalia Parveen Vs. Bangladesh Biman Corporation, 16BLD(HCD)357

Ref: 45 DLR(AD)122; A.I.R.1981 (SC) 1829; 1992 (SC) 392—Cited.

 

Section—9(2)

Sub-section 2 of Section 9 of Act. XII of 1974

Since it appears from the office record that the decision to retire the petitioner was taken in the public interest, mere non- mentioning of the words “in the public interest” in the impugned order of retirement does not at all effect its legality.

Retirement—whether a punishment—to take or not to take disciplinary action under the relevant rules against a delinquent Government servant is a matter which is absolutely within the discretion of the Government. In a case of a Government servant who has completed 25 years of service, the authorities may even start proceedings against him on a given charge and thereafter may drop the same and proceed under section 9(2) of the Act to retire him.

Retirement with full pentionary benefits after completion of 25 years of service is not a punishment nor does it contain any stigma. Such retirement is altogether different from ‘dismissal’ ‘removal’, ‘compulsory retirement’, which are different kinds of punishment as contemplated in rule 3 of the Government Servants (Discipline and Appeal) Rules, 1976.

Shah Mohammad Zahurul Hoque Vs. Government of the People’s Republic of Bangladesh. 14 BLD (HCD) 491.

Ref: MA. Rashid, Assistant Engineer, Bangladesh Water Development Board Vs. Secretary, Ministry of Power, Water Resources and Flood Control and another, 31 DLR(HCD) 339; Habibullah Khan Vs. Shah Azharuddin Ahmed and others; 35 DLR(AD)72; Farzand Ali and others Vs. West Pakistan, 22 DLR(SC)208;ShyanLal Vs. State of Uttar Pradesh and another, A.I.R. 1954(SC)369; Abdur Rashid Vs. Government of Bangladesh, 30 DLR(HCD)40, India Vs.CoI. J.N. Sinha and another; SCC (md) (1970)Vol, 2, Page 458; Writ Petition No. 2385 of 1990 (Janab Abdul Kalam Md. Sayedul Islam Vs. Biman Bangladesh Airlines and others.)

 

729

Rapid Action Battalion (Court Procedure and Departmental Proceedings) Rules, 2005

Citation: 15 BLC 572

Case Year: 2005

Subject: Rapid Action Battalion (Court Procedure and Departmental Proceedings)

Delivery Date: 2018-07-05

Rapid Action Battalion

(Court Procedure and Departmental Proceedings) Rules, 2005

 

Rule 11

 

It appears that the res­pondents directed the petitioner to furnish reply to the show cause notice within 20-12-2005 and further directed him to express his desire to be heard in person. The petitioner by submitting his reply expressed his intention of getting heard him by the respondent No.4. There is nothing on record to show that the petitioner was given opportunity of being heard by the Director, RAB-7. It further appears that by the 2nd show cause notice, the respondent although directed the petitioner to furnish reply to the 2nd show cause notice within 7(seven) days but after receiving the said reply that was not at'all considered by the respondents. From Annexure F, the impugned order of dismis­sal. It appears that the procedure adopted towards dismissal of the petitioner were all taken up as a show up compliance of Rule 11 but not complying with the mandatory requirement as provided in Rule ll(3)(Kha) and 11(5) of the RAB Rules. There is no doubt that the respondents proceeded with malafide to punish the petitioner. Admittedly the respondents proceeded with malafide intention against the petitioner to dismiss him from service. The impugned order of dismissal from service is declared to have been passed without lawful authority and are of no legal effect.

 

Rezaul Haque vs Bangladesh 15 BLC 572.

730

Recognised Non-Government Intermediate College Teachers (Board of Intermediate and Secondary Education, Jessore) Terms and Conditions of Service Regulations, 1979

Citation: 13 BLC 13 228

Case Year: 1979

Subject: Recognised Non-Government Intermediate College Teachers (Board of Intermediate and Secondary Education, Jessore) Terms and Conditions of Service

Delivery Date: 2018-07-05

Recognised Non-Government Intermediate College Teachers

(Board of Intermediate and Secondary Education, Jessore)

Terms and Conditions of Service Regulations, 1979

 

Sections 13(1) and 14(1)(2)

 

As the decision was taken under section 14(1) of the said Regulations it was incumbent upon the plaintiff to submit a show cause within 7 days of her receipt of the decision by her and thereafter the question would have arisen to constitution of any committee as required by section 14(2) of the Regulations. But the plaintiff without waiting for a moment had instituted the suit which she was not entitled to. The decision in question was not a mala-fide one as the allegations were admitted to some extent. The allegations made by the defendants were admitted by the plaintiff at the time of cross-examining her. It can safely be decided that there arose no cause of action in filing the suit. The suit was a premature one and there arose no cause of action in filing the suit and the suit itself was not maintainable.

 

Razia Khartum vs Md Shamsiiz-zohn Khan 13 BLC 13 228.

731

Recognised Non-Government Intermediate College Teachers (Board of Intermediate and Secondary Education, Rajshahi) Terms and Conditions of Service Regulations, 1979

Citation: 14 BLC 390, 11 BLC 599

Case Year: 1979

Subject: Recognised Non-Government Intermediate College Teachers (Board of Intermediate and Secondary Education, Rajshahi) Terms and Conditions of Service

Delivery Date: 2018-07-05

Recognised Non-Government Intermediate College Teachers

(Board of Intermediate and Secondary Education, Rajshahi)

Terms and Conditions of Service Regulations, 1979

 

Regulation  14

 

Order of suspension without prior notice—Illegal—Admittedly, the suspension order appealed against has been passed without giving any prior notice to the appellant and for that reason the order of suspension has certainly been passed in violation of Regulation 14 of the Recognised Non-government Intermediate College Teachers (Board of Intermediate and Secondary Education, Rajshahi) Terms and Conditions of Service Regulations, 1979. The respondents in passing such order of suspension indeed, had indulged in accesses as discussed. Under the facts and circum­stances plaintiff-appellant had succeeded in proving that he had prima facie case that warranted an order of injunction by the trial Court and the trial Court without granting the relief has committed illegality.

 

Shahidul Islam Reza (Md) vs Llpazila Nirbahi Officer 14 BLC 390.

 

Recruitment Regulations, 1994 Regulation 7

 

In section 11 of the Act of 1994, it has been stipulated that the service conditions of the employees are to be determined by the existing laws for the employees of the Republic and the seniority is one of the service conditions and, as such, the framing of such Regulations by respon­dent No. 2 exercising the power conferred under section 21 of the Act 8 of 1994 is a gross violation of the provisions of section 11 of the said Act. Furthermore, while exercising the sub-ordinate legislation, no Rules or by-laws can be framed giving retrospective effect and, in the instant case, retrospective effect has been given in the impugned notification that relates to seniority. Considering facts and circumstances discussed hereinabove, the provisions of Articles 65, 79 of the Consti­tution of the People's Republic of Bangla­desh, the provision of Act 8 of 1994 as well as the Surplus Public Servant Ordinance, 1985 and the decisions as referred to, the impugned amendment of Regulation 7 of the Recruitment Regulations, 1994, the Padonnati Jeshthata Nitimala, 2001 and the absorption of the respondent Nos. 12 to 32 have been done without lawful authority and are declared illegal and are of no legal effect.

 

Ruhul Amin (Md) vs Bangladesh 11 BLC 599.

732

Recognised Non-Government Secondary School Teachers (Board of Intermediate and Secondary Education, Dhaka) Terms and Conditions of Service Regulations,1979

Citation: 12 BLC 315, 12 BLC 385

Case Year: 1979

Subject: Recognised Non-Government Secondary School Teachers (Board of Intermediate and Secondary Education, Dhaka) Terms and Conditions of Service

Delivery Date: 2018-07-05

Recognised Non-Government

Secondary School Teachers (Board

of Intermediate and Secondary

Education, Dhaka) Terms and

Conditions of Service Regulations,1979

 

Regulations 2(k) and 3

 

It is evident that the writ petitioners were appointed as part-time teachers and till date they are continuing as part-time teachers and, as such, the writ petitioners, being of different cate­gory i.e. part-time teachers, are not entitled to be included in the seniority list with other full-time regular teachers. They, as part-time teachers, are not entitled also to be included in the MPO list for getting government grant and allowances.

 

Syeda Nahrin Afroz vs Secretary, Ministry of Education 12 BLC 315.

 

Regulations 11, 12 and 14(2)

 

No mem­ber from the teaching profession was included in the enquiry committee. So, the enquiry committee was not constituted in accordance with the provisions laid down in Regulation 14(2) of the Regulations, 1979. Moreover, the proposal for such penalty was not examined by the Appeal and Arbitration Committee and approved by the Board as required by Regulation 12 of the Regulations of 1979. The procedure for drawing up proceedings for imposition of penalty was not in accordance with law prescribed in Regulations 12 and 14 of the Regulations, 1979 and, as such, the penalty of dismissal dated 26-11-1991 from the service is required to be declared as illegal.

 

Abdul Wazed (Md) vs DC, Jhenidah 12 BLC 385.

733

Registration Act, 1908

Citation: 14 BLC 873, 12 BLC 705, 16 BLC 484, 12 BLC 191, 15 BLC 85, 15 BLC 625, 16 BLC 639, 11 BLC 28, 15 BLC 625, 16 BLC 37, 14 BLC 712

Case Year: 1908

Subject: Registration

Delivery Date: 2018-07-05

Registration Act, 1908

[XVI of 1908]

 

Sections 7(2) and 30(2)

 

It appears further that the deed by Pravat that was executed on 17-7-1973 in favour of the plaintiff was registered in Bakerganj, District Registrar Office as contemplated under section 30(2) of the Registration Act before the amendment of Registration Act in 1985 which, had been done legally. The deed executed by Chinta Haran was registered at Sadar Sub-Registrar Office at Dhaka under section 7(2) of the Registration Act and such authority is evident from the reverse of the deed. The registration of the deed made under such authority by a public officer has got evidentiary value. So, the registration of his deed appears to have been done legally.

 

Jndrani Nath vs Thana Nirbahi Officer 14 BLC 873.

 

Section 17

 

The undisputed fact is that the suit property is the non-agricultural property within Chittagong Municipality and the learned trial Court erred in law in not arriving at finding and decision to the effect that in the absence of registered bilateral document/instrument, the plaintiff or his alleged vendor did not acquire any title.

 

Rezaul Karim vs Moulana Md Harun-ur-Rashid 12 BLC 705.

 

Sections 17A and 17B

 

A combined reading of the provisions of section 17A & 17B of the Registration Act show that after coming into force of this amendment, no party can enter into any contract for sale of any immovable property unless the contract for sale is registered before the Sub-Registrar and if the contract agreement is executed prior to coming of the section 17A, the parties to the contract shall within six months from the date of the amendment present the contract for sale for registration.

 

Farah Naz vs Mahbuba Hasnat Kfian 16 BLC 484.

 

Sections 23, 47 and 60

 

In fact, date of registration of a kabala under section 60 of the Registration Act is taken into consideration for the purpose of computation of limitation in filing a miscellaneous case for pre-emption. According to section 47 of the Registration Act, registered document dates back to its date of execution and operates from that date. There is a long line of decisions which have settled that registered document operates from the date of its execution and not from the date of its registration.

 

Dabiruddin Mia vs Mothaharuddin Miah 12 BLC 191.

 

Section 28

 

The kabala dated 17-11-1972 having been registered in violation of section 28 of the Registration Act is nothing but a void deed, rather fraud was practiced under the Registration Act and as a result, the plaintiff is not entitled to the decree.

 

Golam Mowla vs Abdul Hashem 15 BLC 85

 

Section 47

 

A registered kabala is an evidence of title which will prevail over the other records of rights, until and unless such kabala/kabuliyat is cancelled on a specific allegation of fraud by any civil court in an appropriate civil suit.

 

Hachina Begum vs Abdul Mannan 15 BLC 625.

 

Section 47

 

In the instant case it appears that the defendant No. 1 executed four kabalas on 21-4-1982 but the same were registered on 18-8-1982 but defendants No. 1 executed and registered kabala in favour of plaintiff on 23-4-1982, so, the kabalas which were executed on 21-4-1982 by the defendant No. 1 in favour of defendant Nos. 2-5 shall prevail.

 

Mokbul Ahmed Mia alias Moqbul Ahmed vs Md Golam MostafaU BLC 177.

 

Section 47

 

To apply the test as provided by the section the two documents must be 'at par'.

 

Abdul Jabbar Sheikh vs Md Rafiqul Islam 16 BLC 639

 

Section 60

 

In dealing with a duly registered document the lower appellate Court found itself bound not only by the presumption consequent upon registration, but also by the rules of evidence as debarred the acceptance of any oral statement under section 92 of the Evidence Act for the purpose of either contradicting or subtracting from the terms of a registered document produced in evidence. There was no evidence before the lower appellate Court to prove at any level of satisfaction that this was indeed, a case of fraud and collusion to call that exceptional practice into operation.

 

Rehan Ali (Md) @ Ekendali vs Md Altab Ali 11 BLC 28.

 

Section 60

 

In view of the evidence both oral and documentary there is nothing on record to suggest that the plaintiffs are not in possession. Rather, the exhibited rent receipts and registered deeds in respect of the suit land demonstrate that the possession of plaintiff-appellants in the suit land. The reasons given by the trial court below for passing the impugned judgment on the point that Abdul Kuader Mia, the predecessor of the plaintiffs was a benamder and the plaintiffs could not prove their exclusive pos­session over the suit land are not sustainable either in law or on facts. Furthermore, in this connection it may be mentioned that a kabulyat executed and registered in 1921 creates a presumption that the registration authority under the then British Government was satisfied that the executants, Abdul Kader Mia was squarely a valid citizen to execute the kabulyat.

 

Hachina Begum vs Abdul Mannan 15 BLC 625.

 

Section 60

 

Since the deeds being registered documents under section 60 of the Registration Act, a strong presumption is attached to those deeds.

 

Asgar Ali vs Bangladesh 16 BLC 37.

 

Sections 63A & 69

 

If the proviso is interpreted as being applicable in respect of decree of specific performance, the rule is given retrospective effect so as to apply to events occurring before the insertion of the proviso. Principle of interpretation requires every substantive provision to be prospective unless it is made retrospective by clear words and by necessary implication. In case of Rules' it cannot be given retrospective effect even by clear words if the parent law by specific language permits the delegate to give retrospective effect to the Rules as has been held in the case of Commercial Bank Ltd vs Rahimafroz Batteries 7 BLC (AD) 73. Here neither section 63A nor section 69 of the Registration Act has given power to the Government to give any provision of the aforesaid Bidhimala retrospective operation. Thus the proviso must be construed as being prospective in operation and it must be held that the instant case does not come within the mischief of the aforesaid proviso to Bidhi 5(4).

 

M Anwar Hossain vs Bangladesh 14 BLC 712.

 

734

Regulations for Working of Chittagong Port (Cargo and Container), 2001

Citation: 16 BLC (AD) 37

Case Year: 2001

Subject: Regulations for Working of Chittagong Port (Cargo and Container)

Delivery Date: 2018-07-05

Regulations for Working of Chittagong Port

(Cargo and Container), 2001

 

Regulation 163(1)(2)

 

In the present case, the space let out is outside the port protected area and it falls within the regulation 163(2) which admittedly do not contain any sub-regulation as to the rate. It appears that Regulation 163(2) does not have any sub-regulations from which it could be enforced that the rent of open space shall be half of the rate.

 

Chittagong Container Trans­portation Company vs Bangladesh 16 BLC (AD) 37.

735

Representation of the People Order, 1972

Citation: 14 BLC 477, 11 BLC 477, 17 BLC (AD) 160, 12 BLC 484

Case Year: 1972

Subject: Representation of the People

Delivery Date: 2018-07-05

Representation of the People Order, 1972

 

Articles 12(l)(3)(b) & 14(l)(2)(3)(a)(b)(c) (d)(II)

 

It appears that nonfiling of certificate of nomination from any registered political party at the time of submission of nomination paper does not come within the meaning of "substantial defect" and that defect is curable before the day of scrutiny. Consequently, that defect was not enough to reject the nomina­tion of the respondent No. 1 and, as such, the respondent was a qualified candidate to be elected as a member of parliament in the eye of law. The case law referred to by the learned Advocate for the petitioner and the inter­pretation as given before this Court is not applicable in the instant case, inasmuch as the facts of those case laws are not related with any Election dispute case under the RPO 1972 and, as such, it is held that the requirement of submission of party nomina­tion certificate at the time of submission of nomination paper of the respondent No. 1 has been cured before the day fixed for scrutiny. Consequently the nomination of the respondent No. 1 was not liable to be rejected.

 

Abdul Hannan vs Harun-ur-Rashid 14 BLC477.

 

Article 12(l)(m)

 

The definition of loan defaulter as defined in Article 12[(l)(m) of the RPO is very clear. From order dated 10-12-08 passed by the Election Commission in Appeal Nos. 56 of 2008 and 75 of 2008 it shows that the petitioner paid loan money on 26-11-08 which is only 4 days before the submission of nomination paper. Article 12(l)(m) has made it mandatory to a loanee for paying loan before 15 days of submission of nomination. In view of the said admitted fact the petitioner was admittedly a loan defaulter and, as such, the rejection of nomination of the petitioner was rightly done by the Election Commission, as it appears.

 

Abdul Hannan vs Harun-ur-Rashid 11 BLC 477.

 

Article 64, 65(1) and 66(1)

 

Articles 64, 65(1) and 66 (I) of the RPO are to be considered independently. If Article 64 of the RPO is not given effect to for the disputes mentioned in Article 63(1) of RPO, the Article 64 becomes redundant.

 

Abul Kashem vs Major General Mahmudul Hasan (Rtd.) 17 BLC (AD) 160.

 

Article 66(1)

 

When there is equality of votes between two or more contesting candidates and that the addition of one vote for one such candidate would entitle him to be elected, the High Court Division shall so inform the Commission in such a case and then the Election Commission shall after expiry of the period specified for filing appeal before this Division direct a fresh poll in respect of the said candidates.

 

Abul Kashem vs Major General MaJimtidul Hasan (Rtd.) 17 BLC (AD) 160.

 

Article 96

 

The impugned election sym­bols will in no way undermine and tarnish the image and dignity of the concerned organisations of the government, and that it will not create any confusion in the mind of the people of the country. These symbols will be used as election symbols if allocated by the Election Commission to any party only during the election time for the purpose of conducting the election. By the use of the symbols Boat, Plough and Sheaf of Paddy the Monogram of concerned Government Orga­nisations or the National Emblem will not be desecrated.

 

Advocate Md Shahadat Hossain vs Bangladesh (Spl. Origianl) 12 BLC 484.

736

River Research Institute Act, 1990

Citation: 11 BLC 675

Case Year: 1990

Subject: River Research Institute

Delivery Date: 2018-07-05

River Research Institute Act, 1990

[LIH of 1990]

 

Section 17

 

The constitutional guaran­tee given under Article 135 of the Constitu­tion cannot be whittled down by designating an officer lower in rank than the one who was the appointing authority at the time of the appointment of the petitioner. In the instant case the Board of Governors of the River Research Institute was the appointing authority at the time of appointment of the petitioner in the River Research Institute but subsequently, by the Office Circular dated 24-12-1998, the Board of Governors of the Institute delegated the power of appoint­ment, promotion and taking all sorts of dis­ciplinary actions of all classes of employees of the River Research Institute to its Director General. The Director General being sub­ordinate in rank to the Board of Governors, in view of the settled principle as above, cannot, as a designated officer, exercise the power of appointing authority, namely, the power to impose a penalty of dismissal as precisely has happened to the petitioner in the instant case.

 

Altafur Rahman Talukder vs River Research Institute 11 BLC 675.

737

Rural Electrification Board Ordinance, 1977

Citation: 11 BLC 634, 13 BLC 192

Case Year: 1977

Subject: Rural Electrification Board

Delivery Date: 2018-07-05

Rural Electrification Board Ordinance, 1977

[LI of 1977]

 

Sections 2, 8(f) 9(a)

 

The learned Assist­ant Attorney-General has referred sections 8 and 9 of the Ordinance of 1977 to show that neither transfer of the line from PDB to REB can be challenged on the ground of lack of authority nor the rate as mentioned by the Samity is to be held arbitrary or in violation of section 9(c)(d) because the Samity cannot impose any charge without approval of the PDB. He also placed before the High Court Division three unreported decisions wherein it has been held that the Government has ample power to transfer the line from PDB to REB and, that whether or not lines have been transferred from Municipal area to other places all disputed questions of fact cannot be decided sitting in exercise of power under Article 102 of the Constitution. Regarding higher rate of bills, the learned Assistant Attorney-General referred an unreported decision of the Appellate Division wherein it has been held that no law however has been cited to show that such right exists in the petitioner to enter into bargain concerning the fixation of rate and in the absence of such right the writ petition is not maintainable. Accordingly, the Rules were discharged.

 

Abdul Wadud Khandoker and 43 others vs PDB 11 BLC 634.

 

Sections 8 and 9

 

Fixation of the rate for supplying electricity is authorised by law and these are collected from the user for the service rendered. It is an obligation, cast by law, for supplying electricity and if the petitioner considers the rate on the high side, the option is on him to avail or not the service. No law, however, has been cited to show that such right exists in the petitioner to enter into bargain concerning the fixation of rate and in the absence of such right the writ petition is not maintainable.

 

Mizanur Rahman Khan (Mukul) vs Secretary, Ministry of Power, Energy and Mineral Resources 13 BLC 192.

738

Rural Electrification Board Service Rules, 1990

Citation: 16 BLC (AD) 111

Case Year: 1990

Subject: Rural Electrification Board Service

Delivery Date: 2018-07-05

Rural Electrification Board Service Rules, 1990

 

Rules 40(11)(kha), 40(E)(11)(Kha), 40(2)—

 

The imposition of major penalty upon the respondent No. 1 under Rule without affording him any opportunity to show cause as to why the said penalty should not be inflicted upon him instead of comparatively lower penalty under Rule in respect of which show cause notice has been served upon him has certainly caused prejudice to the respondent No. 1 resulting in a miscarriage of justice.

 

Rural Electrification Board vs Md Awlad Hossain 16 BLC (AD) 111.

 

739

Securities and Exchange Ordinance, 1969

Citation: 14 BLC 274, 15 BLC 91

Case Year: 1969

Subject: Securities and Exchange

Delivery Date: 2018-07-05

Securities and Exchange

Ordinance, 1969

[XVII of 1969]

 

Sections  16 to 18, 21 and 24

 

In the instant case, it appears that the respondent Securities and Exchange Commission held enquiry under section 21 against the affairs of the Issuer, Wonderland Toys Limited and in the course of such enquiry the petitioner's involvement (as Issue Manager) in the matter was revealed as connected facts and the enquiry proceeding being a fact finding process does not require service of any prior notice upon the Issue Manager-petitioner either in the settled principle of law or the provision of section 21 of the Ordinance. In the instant case, no enquiry was held against the affairs of the Issue Manager, petitioner rather the enquiry was held against the affairs of the Issuer, Wonderland Toys Limited and the petitioner's involvement in the matter was revealed as connected facts and the enquiry proceeding being a fact finding process does not require service of any prior notice either in the settled principle of law or under the provisions of section 21 of the Ordinance.

 

It appears that the petitioner in order to avoid the due process of law before the trial Court under the Code of Criminal Procedure or to circumvent the equally efficacious alternative remedy under section 561A of the CrPC to quash the criminal proceedings pending before the Court of Chief Metro­politan Magistrate, Dhaka filed the instant writ petition before this Court on misconcep­tion of law and obtained the instant Rule.

 

National Securities and Consultants Ltd vs Chairman, Securities and Exchange Commission 14 BLC 274.

 

Sections 2CC and 31(2)

 

It appears that if there is any conflict between the Companies Act, 1994 and sub-section (2) of section 31, of the Ordinance, the provisions of the Ordinance shall prevail. Therefore, the Memorandum and Articles of Associations cannot override the terms of the sections mentioned before. Regulations 5(2)(iv) and 14 have been in the Listing Regulations of the DSE since 1996. The petitioner-company has been incorporated knowing fully well about all the existing laws of the country. At this stage, the petitioner-company cannot take a different plea contrary to the laws existing at the time of its incorporation.

 

One Bank Ltd vs Bangladesh 15 BLC 91.

740

Securities and Exchange Rules, 1937

Citation: 14 BLC 723

Case Year: 1937

Subject: Securities and Exchange

Delivery Date: 2018-07-05

Securities and Exchange Rules, 1937

 

Rule 4

 

The dealings of the firm indicate possible manipulation within the meaning of section 17 of the Securities and Exchange Ordinance, 1969. The report is also part of the petition of complaint. Since it is coming out from the petition of complaint that the petitioner acted on unsigned order and this unsigned order as has been stated is not an offence as per Rule 4 of the Securities and Exchange Rules, 1987 which allowed the broker to act on unsigned orders. Therefore, their action does not constitute any offence under any section of the Securities and Exchange Ordinance, 1969.

 

Doha Securities vs State and Securities and Exchange Commission 14 BLC 723.

741

Shammpattir Bazar Mullya Nirdharan Bidhimala, 2002

Citation: 14 BLC 712,

Case Year: 2002

Subject: Shammpattir Bazar Mullya Nirdharan

Delivery Date: 2018-07-05

Shammpattir Bazar Mullya Nirdharan Bidhimala, 2002

 

Bidhi 5(4)

 

When the provision of Bidhi 5(4) of the Shammpattir Bazar Mullaya Nirdharan Bidhimala, 2002 was not there, a deed of sale was valued on the value as mentioned in the decree and the amount mentioned in the decree used to be the amount mentioned in the contract for the enforcement of which the decree was passed. Now that the aforesaid rule requires payment on the market value on the date of presentation of the deed of sale even though the decree mentioned a lower amount, it may create, as in the present case, serious hardship. Article 31 of our Constitution contains the element, due process, which requires a law to be reasonable. Thus, if the aforesaid rule is unreasonably harsh, it will be void on account of it being unreasonable and harsh. It seems that the Rules have been framed to avoid under valuation. In the case of contested decree of specific performance, the question of under valuation cannot arise.

 

M Anwar Hossain vs Government of Bangladesh 14 BLC 712.

 

Bidhi 5(4)

 

If the proviso is interpreted as being applicable in respect of decree of specific performance, the rule is given retrospective effect so as to apply to events occurring before the insertion of the proviso. Principle of interpretation requires every substantive provision to be prospective unless it is made retrospective by clear words and by necessary implication. In case of Rules' it cannot be given retrospective effect even by clear words if the parent law by specific language permits the delegate to give retrospective effect to the Rules as has been held in the case of Commercial Bank Ltd vs Rahimafroz Batteries 7 BLC (AD) 73. Here neither section 63A nor section 69 of the Registration Act has given power to the Government to give any provision of the aforesaid Bidhimala retrospective operation. Thus the proviso must be construed as being prospective in operation and it must be held that the instant case does not come within the mischief of the aforesaid proviso to Bidhi 5(4).

 

M Anwar Hossain vs Government of Bangladesh 14 BLC 712.

742

Small Causes Court Act, 1887

Citation: 14 BLC 339, 13 BLC 735

Case Year: 1887

Subject: Small Causes

Delivery Date: 2018-07-05

Small Causes Court Act, 1887

[IX of 1887]

 

Section 25

 

It is well nigh to remember that High Court Division in the exercise of power under section 25 of The Small Causes Act will interfere only when a substantial injustice has been caused to a party by the order/judgment/decree under protest in Revision Petition. It is conveniently posited that power conferred upon High Court Division for interference under section 25 of The Act of 1887 is more extensive than power exercised by the High Court Division under section 115 of The Code of Civil Procedure.

 

Amina Begum BA B.Ed vs Md Jobayer Alam Sarker U BLC 339.

 

Section 25

 

Defendant-opposite-party in spite of clear knowledge of deed of exchange, and, also, of getting of suit shop/ premises in saham of Abu Md Shah Newaz and, also, of the deed of conveyance executed and registered on 26-11-2000 by Abu Md Shah Newaz in favour of plaintiffs-peti­tioners and, also, in spite of receipt of Attorn-ment Notice, Exhibit 11 and Notice under section 106 of Transfer of Property Act did neither attorn nor admit plaintiffs-petitioners as owner and landlord of suit shop-premises and did not pay rent to them and, thus, became habitual defaulter rendering him liable to be evicted from suit shop/ premises. Payment of rent by defendant-petitioner only on 6-3-2006 and 6-4-2006 with Rent Controller is no lawful payment of rent and defendant-opposite-party cannot save himself from being evicted from suit shop/premises and he has rendered himself liable to be evicted from suit shop/premises.

 

Amina Begum BA B.Ed vs Md Jobayer Alam Sarker 14 BLC 339.

 

Section 25

 

It appears that there is no misreading, non-reading and non-consi-deration of the material evidence on record by the trial Court. The case having been concluded on finding of facts as such no interference is called for in revision under section 25 of the Small Causes Courts Act.

 

Madan Mia vs Md Harunur Rashid 13 BLC 735.

743

Sonali Bank Employees Services Regulations, 1981

Citation: 13 BLC (AD) 53

Case Year: 1981

Subject: Sonali Bank Employees Services

Delivery Date: 2018-07-05

Sonali Bank Employees Services Regulations, 1981

 

Regulation 28(b)(c)(d) and (h)

 

The inquiry officer, from the records kept in the branch, found that there were number of irregularities in disbursing loan, such as there were no recommendations from the con­cerned field assistants in respect of 89 loan cases, there were no approval of loans by the Manager, there were no witness or guaran­tors in respect of 70 loan cases, recommenda­tions by the Chairman and members of the concerned Union Parishad were also not taken in any of the loan cases. As such, the inquiry officer justifiably found the respon­dent No. 1 guilty of negligence, irresponsi­bility, violation of instructions of the con­cerned authority. Accordingly, the appeal is allowed with the modification that the order of dismissal is converted into order of compulsory retirement with effect from the date of order of dismissal.

 

Sonali Bank vs Md Zalaluddin 13 BLC (AD) 53.

744

Specific Relief Act, 1877

Citation: 11 BLC 280, 11 BLC 609, 11 BLC 280, 16 BLC 830, 16 BLC 542, 16 BLC 85, 13 BLC (AD) 86, 11 BLC 272, 11 BLC 391, 11 BLC 391, 16 BLC 639, 14 BLC 801, 13 BLC 782, 6 BLC 639, 17 BLC 71, 12 BLC (AD) 148, 12 BLC (AD) 65, 17 BLC (AD) 174, 11 BLC 28, 11 BLC 694,

Case Year: 1877

Subject: Specific Relief

Delivery Date: 2018-07-05

Specific Relief Act, 1877

[I of 1877]

 

Section 5

 

A suit for specific perfor­mance is that in which the plaintiff claims relief under section 5 of the Specific Relief Act for directing the defendant to do the very act e plaintiff as per the terms of the deed of agreement performed his part, the defendant is also bound to perform his part, otherwise, the Court will act on behalf of the plaintiff.

 

M Manzur Ahmed vs Inge Flatz 11 BLC 280.

 

Section 9

 

The trial Court has recorded a finding that the defendants dispossessed the plaintiffs from the suit land on 4-12-1997 and 7-4-1998 respectively though the trial Court did not assign any reason for such finding and hence the defendants failed to discharge the onus that they were in possession of the suit land after 28-6-1992 till 4-12-1997 and 7-4-1998. By such facts the plaintiffs succeeded in proving that they were in possession of the suit land from 28-6-1992 and they were dispossessed therefrom on 4-12-1997 and 7-4-1998. The suit was filed on 14-7-1998. The suit was therefore, filed within 6 months from the date of the dispossession of the plaintiff from the suit land. There is no error of law or infirmity in the impugned decision of the learned Sub-ordinate Judge calling for inter­ference in the exercise of power under revisional jurisdiction under section 115(1) of the Code of Civil Procedure.

 

Sabar Mia (Md) vs Abdul Mannan Sarker 11 BLC 609.

 

Section 9

 

It is contended on behalf of the petitioners that the plaintiff after going back to possession of the suit land should not disturb the possession of the defendants who are admittedly co-sharers in the suit land till co-sharers separated their saham either by amicable partition or by metes and bounds through a partition suit. Finding the con­tention reasonable the High Court Division directed the plaintiffs not to disturb the possession of the defendants after they were restored to possession in execution of the decree passed in the present suit under section 9 of the Specific Relief Act till suit holding is partitioned by metes and bounds.

 

Sabar Mia (Md) vs Abdul Mannan Sarker 11 BLC 609.

 

Section 12

 

It appears that the plaintiff has done his part as per the agreement and is also willing to repay the balance considera­tion money with a view to getting the sale deed registered. In such circumstances, the defendant is dutybound to perform his part as per section 12 of the Specific Relief Act.

 

M Manzur Ahmed vs Inge Flatz 11 BLC 280.

 

Section 12

 

From the discussions of the testimony of PW 1 it is crystal clear that he has failed to prove his alleged Bainapatra and payment, part payment of consideration money. Per Md Nuruzzaman, J (dissentimg in part).

 

MA Hashem vs Shamsul Knbir Humayun Reza 16 BLC 830.

 

Section 12

 

Appellant Division of the Hon'ble Supreme Court of Bangladesh held that in the suit for specific performance of contract only point for consideration is whether the unregistered deed of sale is a genuine document or not and if it is found to be genuine document the suit of the plaintiff should succeed. The suit was decreed directing the defendants to execute and regis­ter the kabala pursuant to the agreement.

 

Sultan Miah vs Roksana Begum 16 BLC 542.

 

whether plaintiff was ready to perform his part, whether plaintiff was ready and willing with remaining money for performing the contract together with fact that plaintiff was never in the possession shows that plaintiff's case for Specific Performance of Contract is totally a hopeless case. Per Sharif Uddin Chaklader, J (delevering the main judgment) MA Hashem vs SJwmsul Kabir Humayun Reza 16 BLC 830.

 

Section 12

 

A bainapatra, contract or agreement is enforceable in law and decree can be passed when the bainapatra, contract or agreement is not cumbrous but legal and genuine. From the discussions of the legal features of the case it is our considered view that Exhibit I is not a bainapatra, agreement or contract to be enforceable in law.

 

Roshanally Mohamed Harji vs AKM Zakir Hossain 16 BLC 85.

 

Sections 12 and 22

 

Specific Perfor­mance of Contract—Since the defendant No.l did not obtain the same and on enquiry on two occasions as mentioned in the plaint, the defendant No.l did not give any satisfactory reply regarding procurement of income tax clearance certificate, the plaintiff did not tender the balance consideration money and get the sale deed executed and registered from the defendant No.l for want of necessary income tax clearance certificate to be obtained by the defendant No.l. Thus it appears that there was rather, laches on the part of the defendant No.l in the matter. The amount of solatium awarded by the High Court Division is not too inadequate. However, Appellate Division allowed a further sum of Taka 50,000 (fifty thousand) as solatium to defendant No.l.

 

Afazuddin vs Md Ataur Rahman 13 BLC (AD) 86.

 

Section 21(h)

 

Admittedly, the defend­ant No. 1 has entered into a contract for purchase of the suit property from the Government on 1-8-1985. Admittedly, the defendant No.l got the transfer deed execu­ted and registered by the Mirpur Housing Society Authority on 15-9-1988. This being the admitted fact, it is absurd to believe that the plaintiffs entered into an oral contract with the defendant No.l on 15-11-1984 to purchase the suit house before acquiring title by the defendant No.l.

 

Mojibar Rahman Sikder (Md) vs Md Liton 11 BLC 272.

 

Section 22

 

It has not been regarded as a sound and reasonable judicial principle that the Court should exercise its discretion to allow relief under specific performance of contract where the specific performance of contract will lead to an unfairness to the third party like defendant No. 3 who purchased the suit property in good faith and has been enjoying the property. It is therefore, a case of extreme hardship which is likely to result from the performance of the contract. Having regard to the facts and circumstance of the case, there is no manner of doubt that this is a fit case in which the discretionary power of the Court to refuse specific performance of contract should be exercised, even though it may be argued that this hardship arises out of events subsequent to the date of contract.

 

Jahangir Alam Barker vs Motaleb 11 BLC 391.

 

Section 22

 

It appears that the plaintiff-opposite-party has totally failed to prove that oral contract was made between the plaintiff

 

Section 12

 

None of the ingredients of section 12 of the Specific Relief Act i.e. entering into agreement, passing of consideration money, delivery of possession, nd the defendant No. 1 and earnest money of Taka 80,000 was paid out of Taka 1,20,000 on the basis of oral contract. Moreover, the plaintiff has not come to the Court with clean hands as he giving loan of Taka 30,000 to the defendant No. 1, he has devised a plan to grab the suit property. The plaintiff has no prima facie case at all.

 

Jahangir Alam Sarker vs Motaleb 11 BLC 391.

 

Section 22

 

To exercise the discretion, the circumstantial evidence has great implication upon consideration of the genuinity of the baina-patra.

 

Abdul Jabbar Sheikh vs MA Rafiqul Islam 16 BLC 639.

 

Section 22

 

Specific performance was refused on the ground of hardship of the respondent, a widow of the late defendant, and if solatium or compensation is paid only in consideration of the present market value of the land, then the purpose of refusing specific performance on the ground of hardship will be defeated.

 

Abdus Sobhan vs Md Ahsanullah 14 BLC 801.

 

Section 22

 

It is by now settled that relief under Specific Relief Act, 1877 for enforcement of contract is discretionary with the Court and that if any fraud practice is found to have been made in any contract there remains no scope for enforcement of the contract from a court of law. The case of non-participation of the plaintiff No. 2 cannot be considered lightly since it is the case of the plaintiffs that they both entered into the contract. The plaintiffs were required to prove the contract as a whole.

 

SM Kutubuddin vs Aftab AH (Captain Retd) Bir Pratik 13 BLC 782.

 

Section 27(b)

 

The 'onus probandi' is on the person who claimed that he is an innocent party.

 

Abdul Jabbar Sheikh vs Md Rafiqul Islam 16 BLC 639.

 

Section 31-34

 

Plaintiff has every right to get her portion as per deed since the same is the dower money and also can get the portion, of saham as per Muslim Law of inheritance and if she did not obtain the same can claim the same by filing partition suit. The defendants are not bound to make rectification of the deed which was executed.

 

Altab Hossain & Altaf Hossain vs Aziza Begum 17 BLC 71.

 

Section 39

 

The High Court Division on consideration of the materials on record, particularly the evidence of PW 6, held that the kabala on the basis of which defendants claimed the land in suit was forged since the plaintiffs by reliable evidence have estab­lished that Kamaruddin Dewan died in 1962 and, as such, defendants' claim of execution of kabala by Kamaruddin Dewan in their favour in the year 1970 is not true. The plaintiffs have established that the kabala on the basis of which defendants claimed the land in suit was fraudulent since thumb impression said to be of Kamaruddin Dewan was found to be different from the thumb impression appearing in the undisputed kabala executed by Kamaruddin Dewan in 1959.

 

Awlad Hossain vs Ebadulla Dewan 12 BLC (AD) 148.

 

Sections 39 and 42

 

On the execution and registration of the kabala pursuant to the decree passed in the suit for specific performance of contract the same having been completed long before filing of the suit the plaintiff was required to file the suit for removal of the cloud cast on the plaintiff's title by the kabala dated October 30, 1989 executed and registered pursuant to the decree obtained by the defendant No. 1. The plaintiff having had not sought for the consequential relief in the light of the provision of section 42 of the Specific Relief Act, the plaintiff's suit was not maintainable and accordingly, the High Court Division was in error in setting-aside the judgment and decree of the lower appellate Court.

 

KM Zahirul Haque vs Shahida Khanam 12 BLC (AD) 65.

 

Sections 42, 53 and 54

 

Before institu­tion of suit title of plaintiffs were clouded, for which they failed to seek their redress in any manner whatsoever. Suit for permanent injunction is not maintainable.

 

Bangladesh vs Simjul Islam 17 BLC 804.

 

Section 42

 

The trial Court arrived at its wrong decision because of non-consideration of the material evidence on record namely, the rent receipts granted by the Government and the deed a 90 years old registered deed as well as the SA Khatian and RS Khatian standing in the names of the predecessor-in-interest and in the name of the plaintiffs respectively and the Judgment of the High Court Division is in accordance with law and hence no interference is called for.

 

Abdul fabbar vs Akter Hossain Bhuiyan 17 BLC (AD) 174.

 

Section 39

 

In dealing with a duly registered document the lower appellate Court found itself bound not only by the presumption consequent upon registration, but also by the rules of evidence as debarred the acceptance of any oral statement under section 92 of the Evidence Act for the purpose of either contradicting or subtracting from the terms of a registered document produced in evidence. There was no evidence before the lower appellate Court to prove at any level of satisfaction that this was indeed, a case of fraud and collusion to call that exceptional practice into operation.

 

Rehan AH (Md) @ Ekendali vs Md Altab AH 11 BLC 28.

 

Section 39

 

From a bare reading of the section it transpires the decree of a suit framed under section 39 of the Specific Relief Act must contain indispensably a declaration as to the document, whether it is void or voidable and if the Court finds its voidability then only the further consequential relief by way of cancellation of the document would find its place in the decree. But, if the Court finds that the instrument is void no such consequential relief by way of cancellation will be needed and, if given, must be treated a superfluous one. The finding of the appellate Court insofar as it relates to the deed of Heba-bil-ewaj dated 14-7-1965 is upheld and the finding of the appellate Court insofar as it relates to the deed of Heba-bil-ewaj dated 3-1-1978 is set-aside.

 

Fazlul Plaque Malik vs Nurjahan Begum 11 BLC 694.

 

Sections 39 and 42

 

The High Court Division is in complete agreement with the learned sub-ordinate Judge to the effect that the suit is not maintainable in its present form as it has been brought for mere declaration to the effect that ex parte decree passed in a suit earlier is not binding upon him without seeking other relief when the High Court Division has noticed that PW 1 had admitted that he is not possession of the suit land.

 

Ashrafunnessa vs Basir Miah 15 BLC 409.

 

Sections 37 & 42

 

The instant suit is not a suit for simple declaration of the impugned order of,dismissal as illegal and inoperative but also for a declaration that the plaintiff is in her service which is very much a consequential relief and if decree is passed by the Court, the same is very much executable. Failure and/or frustration of the ancillary/ auxiliary relief cannot frustrate the entire suit and cannot result in dismissal of the suit if the plaintiff is otherwise entitled to a decree of her substantive relief. The prayer of the plaintiff made in sub-paragraph "Kha1, may become infructuous due to an appointment to her post before filing the suit but for that reason her suit for declaration as prayed in sub-paragraph 'Ka' cannot fail if she is otherwise entitled to get a decree to that effect which is very much effective and executable.

 

Musaraf Sultana vs Principal & Member-Secretary, Kanchipara Mahabidhyalays 12 BLC 505.

 

Sections 39 and 42

 

The plaintiff sought for declaration that the four sale deeds as described in the schedule of the plaint are fraudulent inoperative and antedated and such declaration having the effect of written instrument void or voidable comes within the purview of section 39 of the Specific Relief Act is maintainable without ad-valorem Court fees.

 

Mokbul Ahmed Mia alias Moqbul Ahmed vs Md Golam Mostafa 11 BLC 177.

 

Sections 39 and 42

 

The plaintiff appel­lant instituted the suit for a declaration that the deed of lease executed between the parties was a void and fraudulent document and not binding upon the plaintiff. It appears that the draft agreement purported to have been made has not been produced before any courts. The plaintiff further asserted that after the fraud was detected the plaintiff called the defendant respondent and after discussion with the consent of the defendant was made but the said was also not produced before any Court. The Courts below committed no illegality in dismissing the suit and the appeal.

 

Government of the People's Republic of Bangladesh vs Megha Fisheries Ltd 11 BLC (AD) 97.

 

Section 42

 

The defendants' predeces­sors possessed the suit land by purchasing the same in auction and the defendants also got possession over the same. On perusal of the documentary and oral evidence on record, the defendants are found in posses­sion, as such, the plaintiffs suit for decla­ration without having prayer for recovery of khas possession in the suit land, the suit is not maintainable in the present form.

 

Abdul Awal vs Abdul Hai 12 BLC 487.

 

Section 42

 

The predecessor of the plaintiff surrendered the schedule 1 land in favour of the defendant's predecessor and the plaintiff's predecessor abandoned his title in the suit land. The surrender was a valid surrender. After that surrender the. plaintiff's predecessor or the plaintiff was never in possession in the suit land. The plaintiff hopelessly failed to prove his possession and dispossession as alleged in the plaint and the suit was barred by limitation and was barred under section 42 of the SR Act.

 

Abdul Hamid vs Aminul Islam Chowdhury 12 BLC 586.

 

Section 42

 

We are in complete agree­ment with the learned Sub-ordinate Judge to the effect that the suit is not maintainable in its present form as it has been brought for mere declaration to the effect that ex parte decree passed in a suit earlier is not binding upon him without seeking any other relief more particularly when we have also noticed the PW 1 had admitted that he is not in possession for the suit land.

 

Ashrafunnessa vs Basir Miah 15 BLC 409

 

Section 42

 

There is no ambiguity in the language of section 5 of the Ordinance. It is to be read as it is. By importing or adding the word 'rural' or 'urban' in the section it need not be interpreted otherwise. For the purpose of applicability of this section in the entire part of the country the legislature did neither used the word rural or urban nor used the word agricultural land or non-agricultural land in the section. So, we have found that by making the provision of section 5 acquisition of the 'immovable property1 by benami transaction has been prohibited. The plaintiff had no legal title in the suit property to get declaration that the defendant is benamdar and he has acquired the property through benami transaction and, as such, the suit is barred under section 42 of the Specific Relief Act. There is no reason to interfere with the judgment and decree passed by the trial Court rejecting the plaint under Order VII rule 11 (d) of the Code of Civil Procedure.

 

SN Kabir vs Fatema Begum 15 BLC 585

 

Section 42—-

 

In view of the evidence both oral and documentary on the point of possession there is nothing on record to suggest that the plaintiffs are not in posses­sion. PW 1, Hanif Miah used to pay rent to the Government regularly vide exhibit 2A to 2F starting from 1954-1975 and those rent receipts are evidence of possession. On examination of the rent receipts vide exhibit 2A to 2F together with the evidence of PWs and DWs, we are unable to agree with the finding of the trial Court that the suit was barred by law of limitation as well as barred by section 42 of the Specific Relief Act as the plaintiffs could not prove their exclusive possession in the suit land within 12 years from before the date of filing of the suit. This finding of the trial Court below appears to be perverse and the same does not deserve to be sustained.

 

Hachina Begum vs Abdul Mannan 15 BLC 625

 

Section 42

 

Maintainability of suit—It is pertinent to mention that plaintiffs by way of amendment incorporated the facts regarding auction purchase by Government, although plaintiffs made an unsuccessful attempt to deny such facts and deposed beyond pleadings which disproved their own case" Moreso, plaintiff's title was clouded before institution of instant suit. So, in my view without seeking any relief against auction, the suit for declaration of title simpliciter is not at all maintainable.

 

 Abdul Khaleque alias Abdul Malek vs Khorshed Alam 15 BLC 817

 

Section 42

 

In the absence of any prayer for substantive relief the trial Court below was not competent in law merely to give a decree as regards the consequential relief that the decree dated 5-6-97 passed in Title Suit No. 103 of 1996 was fraudulent, void and not binding on the plaintiff-petitioner.

 

Tariqul Alam vs Md Mizanur Rahman 11 BLC 39.

 

Section 42

 

The title of the co-sharers in the joint property cannot be declared without making partition of the joint property.

 

Amiruddin Mondal (Md) vs Md Ashraf AH 11 BLC 134.

 

Section 42

 

The plaintiff sought for declaration of title in part of a number of plots without specifying the area. The learned Advocate for the petitioner failed to show any evidence regarding plaintiff's possession in the suit land and hence the suit is barred under the proviso of section 42 of the Specific Relief Act and also under Order VII, rule 3 of the Code of Civil Procedure.

 

Abdul Malek Howlader vs Deputy Commissioner, Barisal 11 BLC 325.

 

Section 42

 

On a perusal of the evidence on record it appears that both the petitioner and the opposite-party No. 1 are the joint owners in plot No. 2084, consequently, the suit for simple declaration of title is quite maintainable without praying for consequen­tial relief by way of partition as provided in section 42 of the Specific Relief Act, 1877.

 

Marjina Khatoon vs Shamsunnahar 14 BLC 289

 

Section 42

 

The claimed land of the plaintiff has been very specifically and properly described in the schedule of the plaint inasmuch as the boundary of 18 decimals of land has also been described in the plaint. Apart from this I have gone through the schedule of the title deeds of purchase by the mother of the plaintiffs being of the year 1943 and 1950 and also in the schedule of both the deeds I find that the schedule as given in the plaint is exactly right that of the schedule given in the title deeds. Moreover, the local investigation report submitted by the learned Advocate Commis­sioner also speaks of truth of claim of the plaintiff and the learned Appellate Judge has very consciously taken into consideration this aspect of the case and thus arrived at his decision for decreeing the suit. Hence without filing partition suit the present suit is quite maintainable.

 

Bangladesh Railway Board vs Md Atar AH 14 BLC 556

 

Sections 42 and 56

 

Sections 42 and 56 of the Specific Relief Act deal respectively with suits for declaration and injunction, both being discretionary and equitable reliefs which the plaintiffs of this case have sought for. The principle laid down in section 56(J) rests on the maxim that he who seeks equity must do equity and should come with clean hands. In this case, the plaintiffs have totally failed to prove their case. Moreover, they have not come to the court with clean hands, so they cannot get equity.

 

 Abul Hossain vs Habibullah Mia 11 BLC 209.

 

Section 42

 

The decision of their Lordships of the Appellate Division is that a suit for declaration that the dismissal order is illegal and that the plaintiff is in service is not maintainable and is hit by the proviso to Section 42 of the Specific Relief Act.

 

Rafiqul Alam vs Md Abdul Awal 16 BLC 168

 

Section 42

 

In view of the averments relating to cause of action and several letters, internal communications and reports of the defendants and also in view of the deposition of DW1 admitting possession of the plaintiffs in the suit land, it cannot be said that the suit is barred by section 42 of the Specific Relief Act.

 

Asgar AH Mia vs Bangladesh 16 BLC 37

 

Section 42

 

When both the suits tried and heard by the same Judge simultaneously and the suit for declaration of title and permanent injunction decreed against the contested defendants including instant plaintiff appellant, then natural consequence is that the suit for sale permission for same suit plot is not maintainable when plaintiff himself especially in the plaint and evidences admitted that he is out of possession. Per Md Nuruzzaman, J (dissentimg in part)

 

MA Hashem vs Shamsul Kabir Humayun Reza 16 BLC 830.

 

Section 42

 

The plaintiff is not required to seek consequential relief for reinstatement in service because the defendant being a statutory body is under the constitutional obligation to implement the decree passed by a competent court.

 

GM, Rangpur Palli Bidyut Samity-1 vs Md All Reza 12 BLC (AD) 7.

 

Section 42

 

 It is seen from the evidence of PW 4 that the defendants have huts in the land in suit and it is also seen from the evidence of DW 4 that defendants have their huts in the land in suit and they are living therein. The aforesaid positive statement of the DW 4 in examination-in-chief was not challenged by the plaintiffs at the time of cross-examination of the witness. In the afore state of the matter the contention made from the side of the appellants that as Firoz Bhuiyan waived his right in respect of half of the property taken settlement by the Hukumnama of the year 1344 BS and thus lost his right in the half of the property by waiver, estoppel and acquiescence appears to be of substance.

 

Abu Asad Bhuiyan vs Abu Taher Bhuiyan 12 BLC (AD) 9.

 

Section 42

 

Since plaintiffs' suit was not maintainable as they filed a mere declaratory suit in respect of unspecified as well as undivided portion of the land and, as such, even if any adjudication is made as regard the relief sought as to the decree obtained in Title Suit No. 206 of 1976 would be of no purpose since in the absence of seeking consequential relief of recovery of possession mere declaration of title as regard the land described in the schedule 'Ga' cannot be allowed.

 

Ershad Ali Hozvlader vs Santi Rani Dhupi 12 BLC (AD) 36.

 

Section 42

 

It is not denied by the RAJUK that possession of the property in suit was made over to Khaleda Rahman. Nor it was the case of RAJUK that Khaleda Rahman had not gone into possession after execution and registration of the lease deed. Since no material was placed before the Court from the side of RAJUK that after cancellation of the lease of Khaleda or, for that matter, letter according permission for transfer to the plaintiffs' predecessor the RAJUK took over the possession. So, whatever materials produced before the Court from the side of the defendant No. 1 in assertion of his claim of possession were mere paper transactions and thus the appellate Court was in error in holding that the defendant No.l has proved his possession in the land in suit and hereupon held that the suit was not main­tainable since consequential relief in that regard was not prayed for.

 

RAJLIK vs Iqbal Ahmed 12 BLC (AD) 207.

 

Section 42

 

A suit for declaration is maintainable under section 42 of the Specific Relief Act as to any legal character or to any right as to any property of the plaintiff if the defendant denies or is interested to deny his title to such character or right. If the above conditions are satisfied, the plaintiff need not ask for any further relief than a mere declaration. But such suit would not be competent and maintainable and the court shall not make such declaration if he, being able to seek further relief than mere declaration to the above effect, omits to do so by way of consequential relief. Whether any other prayer by way of consequential relief is required to be made is determined with reference to the scope of the plaint i.e. the allegations made in the plaint, and not with reference to the allegations in the written statement.

 

Divisional Forest Officer vs Md Shahabuddin 12 BLC (AD) 138.

 

Section 42

 

It appears that the trial Court discussed the evidence and also perused the documents and legal aspect of the case and made his observation that the suit was hit by section 42 of the Specific Relief Act. The learned trial Court further held in his judgment that since PWs 2 and 3 admitted the possession of the defendant in the suit land the plaintiff ought to have sought for recovery of khas possession as consequential relief. But the plaintiff instituted a simple suit for declaration of title which is not maintainable and hit by section 42 of the Specific Relief Act.

 

Abdul Jabbar Bhuiyan vs Kulsum Banu Bibi 13 BLC 435

 

Section 42

 

On perusal of the pleadings as well as the evidence on record, it appears that the parties to the deed in ques­tion are the heirs and legal representatives of the Late Obaidur Rahman. The deed in question having been made in favour of the co-sharers of Obaidur Rahman the plaintiff may seek remedy in a properly instituted partition suit.

 

Aminul Hoque vs Noor Jahan Begum 13 BLC 472

 

Section 42

 

In the eye of law, even a symbolical possession obtained through court has the effect of actual possession so far as the judgment debtors are concerned. Under such circumstances, the plaintiff's suit for simple declaration of title without any prayer for recovery of khas possession is barred under section 42 of the Specific Relief Act, as at the time of filing of the suit the plaintiffs had no possession. The court of appeal below did not consider that the defendants-petitioners had already taken delivery of possession through court on 2-10-1984. The plaintiffs-opposite parties filed Title Suit No. 4 of 1992 on 21-1-1992 when they had no possession in the suit land. Thus, the suit filed by the plaintiffs for declaration without the prayer for khas possession is not maintainable in its present form.

 

Abdul Aziz vs Kabir Ahmed Patwary 13 BLC 208.

 

Section 42

 

The last Court of fact has found that the plaintiff has title in the land in suit and he is in possession of the land in suit as the record of right was prepared in favour of the plaintiff, who has been paying rent for the same when the Advocate Commis­sioner's report shows that there is no staicture of Dagonbhuiyan Charitable Hospital and the Thana Health Complex in the land in suit. There is no infirmity in the finding of the High Court Division regarding the right, title and possession of the plaintiff in the land in suit and that claim of the defendants has not been substantiated by oral or documentary evidence.

 

Bangladesh vs Sultan Ahmed 14 BLC (AD) 47.

 

Section 42

 

A decree in a suit declaring that the decree is passed in Title Suit No. 49 of 1958 dated 6-12-1958 is fraudulent and not binding upon the plaintiff is not a devisable one and, as such, aforesaid finding of the High Court Division is unwarranted because the decree against other plaintiffs that has been maintained was opposed to law.

 

Abul Kashem Howlader vs Md Kasem Ali Khan 11 BLC (AD) 86.

 

Section 42

 

The suit property having been vested upon disinvestment as aban­doned property and not having been included in the profile and the schedule to the agreement for sale in respect of the property of the purchaser, no legal right has been accrued to the plaintiff-petitioner in respect of the same for any declaration or any permanent injunction as sought for in the instant suit.

 

Paper Converting and Packaging Ltd vs Bangladesh 11 BLC (AD) 100.

 

Sections 42,55 and 56

 

On and from 6-4-1984 the defendant bank, being denationa­lised, was converted into a private bank incorporated under the Companies Act, 1994 and, as such, the relationship between the plaintiff-petitioner and the defendant bank became that of master and servant from that date and therefore, the petitioner is not entitled to get a decree for declaration without consequential relief; in the instant case there is no prayer for mandatory injunction for consequential relief; even if there is a prayer for mandatory injunction but that too cannot be granted in view of legal bar under clause (e) of section 56 of the Specific Relief Act.

 

Jahir Uddin (Md) vs Rnpali Bank Ltd 12 BLC (AD) 114.

 

Sections 53 and 54

 

 It was the case of the defendants that their predecessor took settlement of the land of plot Nos. 3/4381 and 3/4382. In that state of the matter, it is clear that defendants have no claim in respect of the land of Plot Nos. 3/3315, 3/3317 and 3/3319 which are the plots in suit. In the background of the said fact, the High Court Division as well as the trial Court were quite correct in decreeing the suit which was for a decree for permanent injunction.

 

Alauddin (Md) vs Abdul Hakim 12 BLC (AD) 212.

 

Section 54

 

In a suit for permanent injunction the material question is the actual possession in the suit land. It appears that the plaintiff has proved his possession in the suit land and, as such, the defendants are though co-sharer as per CS record but they cannot jump over the plaintiffs property which has been lawfully purchased by the plaintiffs father.

 

Selima Jalal vs Momtaz AH 16 BLC 727.

 

Section 54

 

Over and above it is found that he has occupied the vacant strip of land illegally. He is a trespasser there. His posses­sion cannot be protected. In the decision reported in 42 DLR (AD) 20 in the case of Belayet Hossain vs Nurul Islam Mir it has been held that a person in wrongful posses­sion of property is not entitled to be protected against the lawful owner by an order of injunction and that a trespasser is not entitled to perpetual injunction against the owner of property. The same principle is equally appli­cable in respect of temporary injunction.

 

Dr SKM Joymd Abedin vs Bangladesh 15 BLC 198.

 

Section 54

 

The learned trial Court did not commit any error of law and illegality in arriving at its finding because the plaintiff could be able to prove his title as well as the possession in the suit land by adducing oral and documentary evidence. The lower appel­late Court, on the other hand, committed an error of law and came to a wrong and erroneous finding occasioning failure of justice in not believing the 55 years original title deed and the possession of the plaintiff over the suit land which was a prime factor of the suit for a permanent injunction and, as such, committed an error of the law which is liable to be interfered by High Court Division.

 

Ganesh Mohanto vs Md Abdul Hakim 13 BLC 200

 

Section 54

 

Since this is a suit for permanent injunction, there is no scope for giving detailed finding on possession of exclusive possession by any of the Courts below except finding of prima facie posses­sion. Trial Court has thus rightly granted temporary injunction on consideration thereof and the Court of appeal below committed no error of law in dismissing the appeal by affirming the same.

 

Muhibur Rahman vs Abdul Hannan 13 BLC 880.

 

Section 54

 

There is no document of partition. The plaintiffs' suit for declaration of their right of easement as claimed in the plaint is not maintainable as per the provi­sion of section 4 of the Easement Act. The suit land was not finally allotted to the defendant No.l. Defendant No.l is not the owner of the suit land alone, wherein the plaintiffs are joint owners of the suit land. Thus, they cannot maintain the suit and cannot get decree for easement. Since, it has been found that the property is in joint occupation of the plaintiffs and the defendants, and they are all co-owners of the suit plot, the plaintiffs as co-owners of the property can enjoy the property jointly with other co-sharers.

 

Mufti AM Jalaluddin vs Hazera Khatun being dead her heirs Nasiruddin Ahmed 12 BLC 129.

 

Sections 54 and 65

 

On a careful perusal of the plaint, it seems that the plaintiffs in order to get an order of injunction failed to give clear description of the land as required under Order VII, rule 3 of the Code of Civil Procedure. Since the suit land is not ascertainable and unspecified, the plaintiffs are not entitled to get an order of injunction on the land in question.

 

Abdur Rouf vs Abdul Odued Jaigirdar 14 BLC 805.

 

Section 55

 

It was the duty of learned Assistant Judge to maintain his injunction order dated 29-1-2004 unless that order is disturbed by any superior Court but without doing so he has violated his own order and has violated the order of the High Court Division. It is the consistent view of our Appellate Division that in an appropriate case the Court in exercise of its inherent power can issue a temporary injunction in mandatory form to restore the status quo ante in the suit. The learned Assistant Judge, Madhabpur is directed to restore possession in 0.033 acre of land of Plot No. 683, khatian No. 279, Mouza Sultanpur, Police Station Madhabpur, District Habiganj, in favour of the petitioner within 7(seven) days from the date of receipt of this order. The learned Assistant Judge is also directed to dispose of the suit as early as possible preferably within l(one) year from the date of receipt of this order.

 

Upendra Chandra Paul vs Md Abdul Quadir Chowdhury 11 BLC 494.

 

Section 55

 

The High Court Division committed an error in interfering with the order of mandatory injuction in spite of the fact that the respondents have made cons­truction and changed the nature and character of the suit land in utter violation of the Court's Order of status quo.

 

Azizur Rahman Chowdhury vs Tauhiduddin Chowdhury 16 BLC (AD) 26.

 

Section 56

 

The party on whom the onus of proof lies must, in order to succeed, establish the case. He cannot, on failure to do so, take advantage of the weakness of his adversary's case. He must succeed by the strength of his own right and the clearness of his own proof. The burden of proving the case is upon the claimant. Since the plaintiffs have failed to prove the title and possession in the suit land, as such, their prayer for injunction does not lie.

 

Abul Hossain vs Habibullah Mia 11 BLC 209.

745

State Acquisition and Tenancy Act, 1950

Citation: 14 BLC 220, 14 BLC 848, 11 BLC 714, 15 BLC (AD) 115, 16 BLC 267, 14 BLC 848, 17 BLC 33, 17 BLC 33, 12 BLC (AD) 160, 11 BLC 714, 16 BLC (AD) 35, 16 BLC 897, 17 BLC 593, 17 BLC 674, 13 BLC 873, 11 BLC (AD) 147, 12 BLC 777, 12 BLC 787, 17 BLC 472, 11 BLC 5

Case Year: 1950

Subject: State Acquisition and Tenancy

Delivery Date: 2018-07-05

State Acquisition and Tenancy Act, 1950

[XXVIII of 1951]

 

Section 3

 

Considering the Exhibit 3 it appears that the suit land is chandina land for which the case is vested in the government after acquisition of wholesale interest of the Zamindars pursuant to the provisions of section 3 of the SAT Act and hence neither the plaintiffs' predecessor nor the plaintiffs did acquire any title in the suit land by virtue of alleged rokka pattan. From the other exhibits it is clear that the suit land is khash land of the Government when PW 5 admitted in cross-examination that there was interpolation on the rent receipts and such interpolation alone creates doubt as to the genuineness of the same. Non-consideration of such vital evidence the courts below committed error in finding title of the plaintiffs in the suit land as a result of which the finding of fact;arrived by it is not infallible and can be interfered with in revision.

 

Bangladesh vs Rafeda Khatun 14 BLC 220

 

Section 3

 

By Notification No. 4839-LR dated 2nd April 1956, all lands other than retainable khas lands, have, in fact, been acquired by the Government in accordance with the provisions of section 3 of the Act, vesting the same in the Government, and, as such, on 22-8-1956 Sita Sundari had no right to settle with the father of the defendants under the alleged Patta. The Patta is void ab initio.

 

Mridul Kanti Sarder vs Krishna Charan Sarder 14 BLC 848.

 

Sections 3, 20, 43, 44 and 46E

 

On a reading of sections 3,20,43, and 44 of the Act together, it appears that non-retainable khas land belonging either to the rent receiver or to the tenant shall be deemed to have been acquired by the Government and vested in the government with the publication of a notification about final publication of the compensation assessment roll in the official gazette from the first day of the agricultural year next following the date of publication of such notification.

 

Bangladesh vs Serajul Haque 11 BLC 714.

 

Sections 3(1), 43(2), 46C and 46E(3)

 

Considering the facts and circumstances of the case and the submissions of the learned Advocates of the respective parties and on perusal of the Rule 42A of the State Acquisi­tion Rules, 1955 as well as the application filed by the leave petitioner Bhawal Raj Court of Wards Estate dated 14-7-2002 and the gazette notifications dated 24-3-1952 and 29-2-1956 as well as ground rent payment receipts issued by the Government revenue office and earlier by the Bhawal Raj Court of Wards Estate and also the transfer made through registered deed of gift and having regard to the fact that the SA record of right and RS record of right were correctly prepared in the names of the writ petitioners and or their predecessors-in-interest in respect of their respective lands arid also the fact of admission, as to the possession of the writ petitioners in their respective case lands in the draft Mahanagar record of right, there is no reason to interfere with the judgment and order passed by the High Court Division. The learned Advocate appearing for the leave petitioner, when confronted with the aforesaid gazette notifications dated 24-3-1952 and 29-2-1956, as to acquisition of rent receiving interest and the vesting of lands of the leave petitioners, including the case lands, found it difficult to substantiate the locus standi of the leave petitioner in challen­ging the draft records of right prepared in the names of the respective writ petitioners in respect of their respective case lands prepared during the Mohanagar Survey. Further, with the publication of the gazette notifications dated 24-3-1952 and 29-2-1956 the leave petitioner ceased to have any right, title and interest and possession in the case lands, because of acquisition, and vesting of said lands in the Government.

 

Bhawal Raj Court of Wards Estate vs Rasheda Begum 15 BLC (AD) 115

 

Sections 3(1)(2), 42, 43(2)

 

The interest of the rent receivers held under any waqf, waqf-al-al-aulad, debutter or other religious trust acquired under sub-section (1) or non-retainable khas land acquired under sub-section (2) of section 3 finally vested in the Government free from all encumbrances with the publication of the compensation assessment roll under section 42 and declaration about such publication under section 43(2) of the SA&T Act, 1950.

 

Zareen Biscuit Company vs Sayed M Salimullah 16 BLC 267.

 

Section 11

 

In view of the serious contradiction between the evidence of the PWs and the deed itself (Exhibit-2) in respect of source of interest of the inheritors and also on the vague point of Uma Charan's acquiring the occupancy right under section 11 of the State Acquisition and Tenancy Act and its legal implication, it cannot be held the vendors of the plaintiff inherited Chakran interest of Uma Charan or the plaintiff acquired any interest under his kabala, Exhibit-2.

 

Mridul Kanti Sarder vs Krishna Charan Sarder 14 BLC 848

 

Section 10A

 

When Government can­not take over possession of—'In view of the provision of section 10A the Government cannot take over possession of the property of the Waqf Estate from which income is being used for the purpose of charitable organization.

 

Syed Jaglul Hossain Pasha vs Bangladesh 17 BLC 33

 

Section 20(5)(i)(e)

 

Waqf Estate-Acquisition—The Waqf Estate has been owning and possessing the properties through different persons and since it is a Waqf-a-Lillah, 100% income of the Waqf properties have been using for charitable purposes, under section 20(5) (i)(e) of the Act, has made it clear bar to acquire the properties of the Waqf Estate, the Government has no jurisdiction to acquire the properties of the Waqf Estate.

 

Syed Jaglul Hossain Pasha vs Bangladesh 17 BLC 33

 

Section 20

 

Plaintiff has failed to prove oral settlement by dakhila when PW 3 admitted in his cross-examination that the suit land has remained as a khal since SA operation. Law does not permit to grant any settlement of any khal and, as such, the case of the plaintiff is barred by law.

 

People's Republic of Bangladesh, DC, Khulna vs Shatindra Nath Mondal 11 BLC 327.

 

Section 20

 

The High Court Division took correct view that the plaintiff could not  prove that the ex-landlord auction purchased he suit land and made the same khas and thereafter, the same vested in the Govern­ment as excess non-retainable khas land of the ex-landlord. But no paper has been produced by the plaintiff in that respect to show that the Provisions of section 20 of the State Acquisition and Tenancy Act, 1950 were duly complied with in the matter of acquisition of khas lands in excess of the limit imposed by law.

 

Bangladesh vs Md Ali Khondker 12 BLC (AD) 160.

 

Sections 20, 43 and 44

 

It is admitted that nature of land is forest. The defendants claim the suit land on the basis of amalnama dated 15th Poush, 1344 BS taken by Abdul Gafur; that Zaminder granted Dakhilas; that RS and SA record were prepared in the name of Abdul Gafur and that Abdul Gafur paid rent to the government. CS record which was finally published long before 1938 AD and thus the appearance of the name of Abdul Gafur in CS Khatian, who alleged to have taken settlement some time in 1938 AD, have been proved to be fabricated and manu­factured one. Moreover, the amalnama has not been proved as per law. Since the foundation of Title of the defendants-respondents has not been proved and thus the CS khatian has been proved fabricated and manufactured and the SA khatian prepared on the basis of alleged CS khatian has no leg to stand. Dhakalias granted on the basis of khatian does not create any title which was also obtained fraudulently.

 

Bangladesh vs Serajul Plaque 11 BLC 714.

 

Section 20(2a)

 

The submission of the learned Counsel is of no merit since prepa ration of the compensation assessment roll and the publication thereof has the legal presumption that the land claimed by the plaintiffs is of non-retainable class of land and that as on the publication of the compen­sation assessment roll in the gazette, the land has vested in the Government the plaintiffs are not entitled to raise any claim in the land and, as such, relief sought in the suit was not available to them.

 

Gopal Das Soni vs Bangladeshi BLC (AD) 69.

 

Sections 42,43 & 44

 

Provisions made in the sections 42, 43 and 44 of the Act point to inevitable conclusions that every interest which is liable to be acquired under the Act has to be paid for and that except in the cases of acquisition under Chapter-II of the Act the Interests which are acquirable vest in the Government only if assessment of compen­sation in regard to the same has been made and published as provided in the Act.

 

Government of Bangladesh vs Abdul MotalebU BLC (AD) 50.

 

Section 43

 

There is no publication of compensation assessment roll under section 43 of the Act. The property in question is still the property of the Waqf Estate and it will remains so until the Government takes steps in accordance with law.

 

Syed Jaglul Hossain Pasha vs Bangladeshi? BLC 33

 

Sections 48(4) 51 & 55

 

Since the Special Judge is a 'Court' such Court is sub­ordinate to the High Court Division. Any order passed by a Special Judge is amenable to the High Court Division under section 115 of the Code of Civil Procedure.

 

Government of Bangladesh vs Abdul MotalebU BLC (AD) 50.

 

Section 87

 

The High Court Division correctly concurred with the findings of the appellate Court that the land in question was accreted land and the plaintiffs took lease from the Government in the year 1970 under Section 87 of the State Acquisition and Tenancy Act and they have been in posses­sion for long 32 years and correctly decreed the suit.

 

Zahur Ali Sk vs Jogendra Nath Samaddar 16 BLC (AD) 35.

 

Sections 89 and 96

 

It transpires that the learned Judge of the trial Court and the lower appellate Court in their judgment discussed the evidences and also perused exhibits and registered deed produced by both pre-emptor-petitioner and the pre-emptee-oppo-site parties and observed that the petitioner is a co-sharer by inheritance and admittedly, no notice was served upon him, as such, the ground of limitation from the date of knowledge of the pre-emptor-petitioner will be of no avail.

 

Abdul Khaleque Dewan vs Sheikh Md TajuddinU BLC 611.

 

Section 92

 

There is no legal ground of taking of the suit holding in the custody of the government and no legal procedure was followed as prescribed by section 92(3) of SAT Act and, as such, taking over of the holding by Government is illegal.

 

Bangladesh vs Abdul Aziz 16 BLC 897.

 

Sections  92(l)(c) &  92(3)

 

The impugned Memo issued by the defendant No. 2 is under section 92(l)(c) of the State Acquisition and Tenancy Act, which provides the interest of a raiyat in a holding shall be extinguished when he voluntarily abandons his residence without making any arrange­ment of the rent as it falls due and ceases to cultivate his holding either by himself or by members of his family or bargaders for a period of three successive years. But in the present case, it is admitted that the plaintiffs are regularly paying rents and taxes in the Tahashil Office and municipality which were accepted by the relevant officers without an objection.

 

Since no notice was served upon the plaintiffs under section 92(3) of the SAT Act, and in view of the cited decisions the suit is not barred by limitation.

 

Asgar Ali Mia vs Bangladesh 16 BLC 37.

 

Section 95A

 

Section 95A of the SAT Act it is clear that the transfer deed executed on 23-3-1967 is a mortgage deed. Though it is found that Section 58 (C) of the TP Act does not mention the same but ultimately Section 95A clearly provides that mortgage is appli­cable in all the holdings including house or building or any portion or share.

 

Abdur Razzak Khandker vs Maleka Khatun 17 BLC 593

 

Sections 95A

 

No conditional mort­gage is valid and any sale with condition of reconvey is a "complete usufructuary mort­gage."

 

Budhimante Base vs Ajnacharan Biswas 17 BLC 674.

 

Section 95A

 

The plaintiff's name having recorded in SA Khatian, the plaintiff having paid rent, the defendants by filing redemption case No. 50/82-83 having made a prayer for getting delivery of possession, the plaintiff having had got order of injunction against the defendants and that order having been modified directing the parties to maintain status quo and the PW 1-PW 4 having had supported the plaintiff's possession in the suit land, the Courts below were not justified to hold possession in favour of the defendants. The finding of possession as found by the Courts below are hereby set-aside.

 

Shamsur Rahman Khalifa vs Jagodish Chandra 13 BLC 873.

 

Section 96

 

The trial Court after hearing the parties allowed the pre-emption finding that the pre-emptor was a co-sharer by inheritance and that the pre-emptee failed to prove that he was also co-sharer which was affirmed upto to the High Court Division. Any ground not canvassed before the Courts below cannot be raised before the Appellate Division.

 

Abdul Kashem vs Amirun Nahar 11 BLC (AD) 147.

 

Section 96

 

In fact, date of registration of a kabala under section 60 of the Registra­tion Act is taken into consideration for the purpose of computation of limitation in filing a miscellaneous case for pre-emption. According to section 47 of the Registration Act, registered document dates back to its date of execution and operates from that date. There is a long line of decisions which have settled that registered document operates from the date of its execution and not from the date of its registration.

 

Dabiruddin Mia vs Mothaharuddin Miah 12 BLC 191.

 

Section 96

 

The ingredients of section 24 of the Non-Agricultural Tenancy Act and those of section 96 of the State Acquisition and Tenancy Act are different. Some of these distinctions are that while section 96 confers right of pre-emption on the holder of land contiguous to the land transferred, no such holder of land can exercise the right of pre­emption under section 24 of the Non-Agricultural Tenancy Act which merely confers the right of the pre-emption on a non-agricultural tenant in respect of non-agricultural land. Moreover, the expression 'holding' in section 96 which is not to be found in section 24 also makes for a meaningful distinction.

 

Sadhana Rani vs Parimal Kumar Sarker 12 BLC 465.

 

Section 96

 

A careful assessment of testimonies of OPW 1, OPW 2 and OPW 3 demonstrates that pre-emptor side was approached to purchase pre-emption pro­ceeding land and pre-emptor-petitioner did not purchase land expressing inability and, therefore, mediated transaction between vendors-opposite-party side and pre-emptees-opposite-party side and pre-emptor-petitioner, thus, relinquished, abandoned, waived and acquiesced his right to pre-empt land.

 

Syed Shamsul Alamvs Syed Hamidul Huq 12 BLC 777.

 

Section 96

 

The case plot has already been fragmented and the holding has been separated much earlier to the institution of the case. The doctrine of pre-emption has been introduced only to help mutation and amalgamation of the holding. In the instant case, the same having contiguity has ceased to exist. There is no contiguity of the case land with the land of the pre-emptor which had separated earlier and the pre-emptor is not entitled to get pre-emption.

 

Nurul Alam Mondal (Md) vs Md Ferdous Alam 12 BLC 787.

 

Section 96Pre-emption multiple transfer—

 

In case of multiple transfer right to pre-emption accrues to a co-sharer of a holding as soon as a share of it is transferred. The co-sharer of the holding, if he so wishes, may seek pre-emption as against the first transfer in which he may make the subsequent transferee as a party. And in case of success the subsequent transferee is entitled to money not exceeding the deposit made against the first deed.

 

Azadur Rahman vs Abdul Musabbir 17 BLC 472.

 

Section 96It is evident from the materials on record that the land in question being non-agricultural in nature, which is an admitted fact, the application under section 96 of the State Acquisition and Tenancy Act is not maintainable. The pre-emptor has no locus standi to file the case, as he is not the co-sharer on the case holding number of this non-agricultural land.

 

Abul Kadir (Md) vs Matiur Rahman Khan 11 BLC 56.

 

Section 96

 

The pre-emptor in support of his initial knowledge examining himself as PW 1 and PW 2. The pre-emptee alone deposed in the case. In that state of the matter it appears that pre-emptee failed to disprove the case of the pre-emptor about the initial knowledge of the transfer by examining independent witness.

 

Rustum Ah vs Hanufa Begum 12 BLC (AD) 146.

 

Section 96

 

The learned Counsel for the petitioner argued on the question of limitation. The High Court Division, upon detailed discussion of the evidence held that preemptor was able to establish his initial knowledge about the transfer sought to be preempted and that thereafter became certain about the transfer upon obtaining certified copy of the kabala on May 17, 1992. The Miscellaneous case, was filed on May 18, 1992. The learned Counsel for the petitioner could not point out either misreading of the evidence or nonconsideration of the evidence on the point of limitation by the trial Court and by the High Court Division.

 

Aziruddin (Md) vs Harmuj AH 12 BLC (AD) 162.

 

Section 96

 

It appears that the pre-emptee has taken up defence that the pre­emptor himself negotiated the sale and settled the price of the land but instructed the pre-emptor to value the kabala showing minimum price and that has been pleaded and has been substantiated by the PW1 in his evidence. The Court's below have taken their decision lawfully and rejected the claim of pre-emption on the ground of waiver.

 

Abdus Sattar Chowdhury vs Md Ansar AH Sheikh 16 BLC 574.

 

Section 96

 

Certainly, in this case, disputed transfer under the sale deed No-8360 dated 30-11-76 corresponding to 14th Agrahayan, 1383 BS was made to this pre-emptee petitioner and not to his father. His interest in the tenancy has accrued by inheritance simply because he inherited his father's share. How and in which manner their father's interest had accrued to the tenancy is immaterial. The transfer made to the present petitioner is protected and immune from pre-emption under sub-section (10)(a) of section 96 of the SAT Act. This important question of law did not receive due consideration from the trial Court as well as lower appellate Court. Therefore, the two Courts below seriously erred in law in allowing the pre-emption application without properly applying its judicial mind into the facts and circumstances of the case

 

Shamsuddin vs Jatindra Chandra Urang 15 BLC 497.

 

Section 96

 

It appears from the above pronouncement of this Court as well as our Apex Court that the pre-emption is to be sought on holding wise not transaction basis . In the case in hand it appears that the pre-emptor specifically claimed the pre-emption on holding/khatian wise and they did not involved the land in khatian No. 609 and 610 and accordingly they did not made co-sharer of that khatian as party and, as such, it cannot be said the present case is hit by doctrine of partial pre-emption or defect of party.

 

Khalilur Rahman Talukder vs Khondaker R Karim Faruk 15 BLC 739.

 

Sections 96(3) (a)

 

On a close and careful reading of section 96(3) (a) of the State Acquisition and Tenancy Act it appears that the pre-emptor was required to make deposit of the entire consideration money along with statutory compensation and the preemptor cannot make partial deposit in exercising the right of pre-emption. In the instant case, it appears that the price was not mentioned individually and separately and the price of the entire 64 decimal of land was shown jointly at Taka 3,00,000. As per section 96(3) (a) of the SAT Act, the pre-emptor had to deposit the entire kabala consideration plus compensation at the rate of ten percentum against the whole consideration money at the time of filing the pre-emption case.

 

AKM Nazimuddin vs Md Delwar Hossain 13 BLC 868.

 

Section 107

 

The High Court Division discharged the Rule holding that the appel­late Court has duly found that the plaintiff Bigraha is in possession of the suit land and further, the claim of alleged pattan by the defendants in the city of Barisal is hit by the provision under section 107 of the Transfer of Property Act and so the contesting defendant acquired no pattani right in the suit land on the basis of unregistered docu-ment. Moreover, the Exhibits showing payment of rent do not show that those were paid in respect of the suit land.

 

Morium Begum vs State 13 BLC (AD) 131.

 

Section 117

 

The last Court of fact has found that the plaintiff has title in the land in suit and he is in possession of the land in suit as the record of right was prepared in favour of the plaintiff, who has been paying rent for the same when the Advocate Commis­sioner's report shows that there is no structure of Dagonbhuiyan Charitable Hospi­tal and the Thana Health Complex in the land in suit. There is no infirmity in the finding of the High Court Division regarding the right, title and possession of the plaintiff in the land in suit and that claim of the defendants has not been substantiated by oral or documen­tary evidence.

 

Bangladesh vs Sultan Ahmed 14 BLC (AD) 47.

 

Section 123

 

The High Court Division has rightly found that the petitioner's basis of title is a registered deed from her vendor who claims the suit property by oral gift. Being a member of the Hindu Community by the alleged gift petitioner's vendor acquired no title in the suit property. So her vendor Guru Dasi Dey had nothing to transfer to the petitioner.

 

Shahanaz Begum vs Md Kutubuddin 13 BLC (AD) 15.

 

Sections 143

 

Since the petitioners predecessors, got contested decree which has been upheld by the High Court Division and they transferred the entire land by different kabala deeds, they are entitled to get their names mutated in the khatian.

 

Shafique Uddin Ahmed vs Bangladesh 17 BLC 216.

 

Section 143A

 

The learned Additional Attorney-General argued that the material consideration in a case under section 143A of the Act is the question of possession and since in the instant case the appellate Court which is the final Court of fact on consi­deration of the evidence clearly recorded a finding that the Government has been in possession of the disputed land and the said finding has not been reversed in revision, the learned Single Judge of the High Court Division has fallen into an error of law in interfering with the order of the appellate Court refusing correction of the record of right.

 

Bangladesh vs Ramiz Mia 12 BLC (AD) 201.

 

Section 143A

 

It is apparent that the defendant did not take settlement of any land relating to the Taluk named as Abdul Taluk, rather he may have taken settlement of land relating to other Taluk which is adjacent to the land of Abdul Taluk. Therefore, the claim of the defendant has not been established and the Courts below without properly appre­ciating of that exhibit illegally decided the fate of the suit. It appears that the so-called record of right in the name of Abdul Monaf and subsequently corrected in the name of the contesting defendant by filing a suit under section 143 A of the state Acquisition and Tenancy Act is not at all relevant to the suit land and the plaintiff is not bound by the decree of the suit,

 

Famim Khatun us Fazlul Karim 15 BLC (AD) 236.

 

Section 143(a)

 

Writ Petitioners having not enclosed any order of the Revenue Officer pursuant to the filing of their application for mutation and only stated that they prayed to the Assistant Commissioner for mutation of their names who expressed his inability to mutate their names. The High Court Division in no way is sitting on appeal from the order of the Revenue Officer. Since no action or order contrary to law has yet been taken by the Revenue Officer, the writ petition in the nature of mandamus is a premature one.

 

Government of Bangladesh vs M Anwar Hossain 16 BLC (AD) 155.

 

Section 144

 

The trial Court arrived at its wrong decision because of non-consideration of the material evidence on record namely, the rent receipts granted by the Government and the deed a 90 years old registered deed as well as the SA Khatian and RS Khatian standing in the names of the predecessor-in-interest and in the name of the plaintiffs respectively and the Judgment of the High Court Division is in accordance with law and hence no interference is called for.

 

Abdul Jabbar vs Akter Hossain Bhuiyan 17 BLC (AD) 174.

 

Section 144A

 

Cadastral survey record-of-right, though, is the oldest record-of-right prepared under section 103 of The Bengal Tenancy Act State Acquisition record-of-right being a latter record-of-right got presumptive value as to its correctness as enjoined under section 144A of the State Acquisition and Tenancy Act which enjoins that every entry in a record-of-right prepared or revised under section 144 shall be evidence of the matter referred to in such entry, and shall be presumed to be correct until it is proved by evidence to be incorrect. Stale Acquisition record-of-right stands in the name of Kailash Chandra Mondal and record-of-right prepared in the name of Kailash Chandra Mondal, predecessor-father of plaintiffs-petitioners got presumptive value as to its correctness, of course, the presumption is rebuttable one.

 

Kartik Chandra Mondol vs Zoynal Dewan 12 BLC 652.

 

Section 144

 

Without correcting the SA Khatian and RS Khatian as prepared in respect of the case lands in accordance with law earlier, the leave petitioner cannot get its name entered in the recent record of right prepared during Mohanagar Survey allegedly only on the basis of CS Khatian.

 

The petitioner had no locus standi to chal­lenge the draft Mahanagar Survey Khatian as prepared in the names of the respective writ petitioners, at least after publication of the gazette notifications dated 24-3-1952 and 29-2-1956.

 

Bhawal Raj Court of Wards Estate vs Rasheda Begum 15 BLC (AD) 115

 

Section 151A

 

Whether there is any mosque or graveyard in the proceeding land is a disputed question of fact and such quention cannot be decided in writ jurisdiction. However, for strict compliance of the provisions of law that mosques and graveyards are to be excluded from the acquisition proceedings. If there is any mosque or graveyard on the petitioners' land, the same should be kept outside the acquisition proceedings in accordance with the law.

 

Ameenah Ahmed vs Bangladesh 12 BLC 514.

746

State Acquisition Rules, 1955

Citation: 16 BLC (AD) 155, 15 BLC (AD) 115, 12 BLC (AD) 79, 16 BLC 420, 16 BLC 420,

Case Year: 1955

Subject: State Acquisition

Delivery Date: 2018-07-05

State Acquisition Rules, 1955

 

Rules 23(3) and 24(4)

 

Tenancy Rules of 1954 show that the mutation of the record-of-right is not a mere routine work rather such mutation requires examination of the records which may take time. The writ petitioners failed to make out any case that the alternative remedy available to them is not efficacious. The High Court Division should not have exercised its discretion before a decision is given by the revenue-officer. A direction was given to the con­cerned revenue-officer to dispose of the mutation matter within six months from the date of receipt of the judgment. The determination of disputed facts require assessment of evidence.

 

Government of Bangladesh vs M Anwar Hossain 16 BLC (AD) 155.

 

Rules 30, 31 and 42A

 

After final publi­cation of the record of right, after the SA Survey the only mode for correction of the same was through Civil Court and thus subsequent to preparation of SA record of right, the RS record of right was prepared and after final publication thereof the mode for correction of any wrong entry appearing in the RS record was through Civil Court and without moving the Civil Court no correction in recent records of right is lawful or permissible and, as such,, the draft record of right in the instant case having been prepared following the preparation of the SA and RS records in accordance with law, the attempts of the leave petitioner for correction under Rules 30 and 31 of the State Acquisition Rules, 1955 have failed. The plain reading of the application dated 14-7-2002 allegedly filed under Rule 42A of the State Acquisition Rules, 1955, ex-fade appears to be a vague application, inasmuch as the said appellation contains no specific allegation of any act of fraud and it is the settled principle of law that an application, not having disclosed any act of fraud in its body, is not entertainable and liable to be rejected.

 

Bhawal Raj Court of Wards Estate vs Rasheda Begum 15 BLC (AD) 115.

 

Rule 31

 

As it appears the High Court Division also found that Exhibit 8, the order passed by the Revenue Officer, goes to show that the plaintiffs could not prove their title before the Revenue Officer even on 18-4-1969 on the basis of rent receipt Exhibits 2,4 and 5 series and that in Appeal Case No. 2200/ 6869, filed under Rule 31 of the State Acquisition and Tenancy Rules, 1955 the appellate Court, after scrutinising Exhibits 2 and 4 produced before it, found that those were forged and fabricated and accordingly, held that no settlement was granted by those rent receipts.

 

Harun-al-Rashid Mollah vs Bangladesh represented by the Secretary, Ministry of Forest 12 BLC (AD) 79.

 

Rules 31, 42 and 42(A)

 

The petition­ers and their predecessors has/had been possessing the land as shown in the Writ Petition since 1962 and SA and RS Khatians were prepared in their names and they are paying rent to the Government, when the Railway could not show specifying particular portion of land was acquired by it, there is no scope of entertaining appeal under Rule 31 of the SA&T Rules, 1955. In the absence of allegation of fraud the applications under Rules 42 and 42(A) are not available.

 

Abul Hasnat vs Bangladesh 16 BLC 420.

 

Rules 31, 42, and 42(A)

 

Since no question of fraud was agitated, the appli­cation of Rule 42(A), in the instant case is not available.

 

Abul Hasnat vs Bangladesh 16 BLC 420.

 

Rule 42A

 

On perusal of the Rule 42A of the State Acquisition Rules, 1955 as well as the application filed by the leave petitioner Bhawal Raj Court of Wards Estate dated 14-7-2002 and the gazette notifications dated 24-3-1952 and 29-2-1956 as well as ground rent payment receipts issued by the Government revenue office and earlier by the Bhawal Raj Court of Wards Estate and also the transfer made through registered deed of gift and having regard to the fact that the SA record of right and RS record of right were correctly prepared in the names of the writ petitioners and or their predecessors-in-interest in respect of their respective lands and also the fact of admission, as to the possession of the writ petitioners in their respective case lands in the draft Mahanagar record of right, there is no reason to interfere with the judgment and order passed by the High Court Division.

 

Bhawal Raj Court of Wards Estate vs Rasheda Begum 15 BLC (AD) 115.

747

Succession Act, 1925

Citation: 14 BLC 472, 12 BLC 66, 17 BLC 824

Case Year: 1925

Subject: Succession

Delivery Date: 2018-07-05

Succession Act, 1925

[XXXIX of 1925]

 

Section 63

 

It appears that the propounders have failed to prove the due execution and attestation of the Will and the testator had sufficient mental capacity to execute the Will and the same was executed by the testator spontaneously and was read over and explained to him before so execution. As the propounders have failed to prove the due execution and attestation of the Will there is no other alternative but to set-aside the judgment and order as passed by the learned District judge.

 

Kanchan Bala Rani vs Gita Rani Sarker 14 BLC 472.

 

Sections 113,229 and 263

 

It is admitted that a Hindu widow has lifetime interest in estate left by her husband. She can only dis­pose of the estate for some limited purpose like legal necessity and religious and chari­table purpose. She cannot execute a will which will be ineffective after her death. Moreover, the property left by the husband cannot go into the line of his wife and his property will legally devolve upon his own descendants. Here, in this case, the heirs of the brothers of Fakuram Hazra will be entitled to the property left by Fakuram Hazra. The learned District Judge has misconstrued and misapplied the provisions of Hindu Law and the provision of section 263 of the Succession Act in arriving at his decision and in holding that the grant of probate has become useless and inoperative and the sale arising out of such illegal probate has become also illegal and inoperative.

 

Nani Gopal Hazra vs Nagendra Nath Roy 12 BLC 66.

 

Section 213

 

The will is required to be probated to get title in the property but in the present case if the terms of the will are complied with, meaning thereby if adoption is taken by Sura Bala, the adopted son gets the property of his adopted deceased father by operation of law as a natural son and for such purpose probate of the will is not required to be obtained. Will is acceptable as a vital piece of evidence to prove that Joy Chandra expressly authorised his wife Sura Bala to adopt a son after his death.

 

Joyanta Kumar Datta vs Dilip Ranjan Dattal BLC 376.

 

Section 306

 

Actio personalies moritur cum persona—a personal right of action dies with the person. This maxim operates in a limited class of actions including actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory.

 

Badaruddin Chowdhury vs Administrator of Waqf Bangladesh 17 BLC 824

748

Suit Valuation Act, 1887

Citation: 13 BLC (AD) 114

Case Year: 1887

Subject: Suit Valuation

Delivery Date: 2018-07-05

Suit Valuation Act, 1887

[VII of 1887]

 

Sections 8 and 11

 

The Full Bench considering sections 6, 22, 24 and Order XLVIII Rule 1 of the Code of Civil Procedure, section 8 of the Suit Valuation Act, 1887 as amended by the Civil Courts (Amendment) Act, 2001, sections 8,11,19 and 21 of the Civil Courts Act, 1887 and other relevant provi­sions of law has come to the conclusion that the District Judge has no jurisdiction to hear the revisional application against the order of the Joint District Judge in a suit the valuation of which is above Tk. 5,00,000 (Taka five lac) and in such matters the revisional application shall lie before the High Court Division under section 115(1) of the Code of Civil Procedure.

 

Bangladesh vs AHM Khurshed All 13 BLC (AD) 114

749

Supreme Court of Bangladesh (Appellate Division) Rules, 1988

Citation: 12 BLC (AD) 193, 13 BLC (AD) 97

Case Year: 1988

Subject: Supreme Court of Bangladesh (Appellate Division)

Delivery Date: 2018-07-05

Supreme Court of Bangladesh (Appellate Division) Rules, 1988

 

Order XXVI

 

The appellants have failed to make out any case calling for the review prayed for as none of the ingredients as spelt out in Order XLVII, rule 1 of the Code of Civil Procedure or Order XXVI, rule 1 of the Appellate Division Rules is present in this case to lay our hands to review the impugned judgment. In the instant case, there is no reasonable ground to justify the action of the respondent on the doctrine of necessity since the impuged order of detention of the respondent was made, according to the appellants, with the apprehension that somebody else (the students community threatening to move to Sena Bhaban) may endanger public order due to some utterances of the detenu and, as such, this Court in the impugned judgment found the order of detention to have been passed without lawful authority. The plea of doctrine of necessity is not warranted in the facts   and   circumstances.  

 

Bangladesh   vs Mostafizur Rahman 12 BLC (AD) 193.

 

Order XXVI rule I—(Per Justice Md Abdul Matin) :

 

In view of Article 105 of the Constitution read with review rules as per Supreme Court of Bangladesh, Appellate Division Rules, 1988 in Order XXVI, rule I interference can be made only on the ground of an error apparent on the face of the record. The scope of interference is very limited. Nonetheless, since in the instant case the error is apparent on the face of the record and in that view of the matter to limit the relief to reduction of sentence only is not enough.

 

The appellants enjoyed their freedom from 9-4-1996 when they were acquitted by the High Court Division and then they are released as per leave granting order dated 3-11-1996 and, therefore, ends of justice will be met if the two appellants are given the full relief by allowing the appeals as a whole maintaining the judgment of the High Court Division insofar as the appellants are concerned. Therefore, the appeals are allowed. Accordingly, the appellants are acquitted Order of the Court These appeals are allowed by majority judgment. The perod of sentence is reduced to 3 (three) years from 7(seven) years. The appellants are directed to surrender to serve out the sentence, if not already served out.

 

Khandker Zillul Bari vs State 13 BLC (AD) 97.

750

Teachers & Non-Teaching Staff of Nationalised Colleges (Directorate of Public Instruction) Absorption Rules, 1981

Citation: 16 BLC (AD) 18

Case Year: 1981

Subject: Teachers & Non-Teaching Staff of Nationalised Colleges (Directorate of Public Instruction) Absorption

Delivery Date: 2018-07-05

Teachers & Non-Teaching Staff of

Nationalised Colleges (Directorate

of Public Instruction) Absorption Rules, 1981

 

Rules 4 and 8

 

From the statements in the writ petitions it is found that the writ petitioners were eligible for regularization to their respective posts as per Rule 4 of Rules, 1981 on or before 10th May, 1998, prior to the promulgation of Rules of 2000. The writ petitioners regularization will be decided as per rule 4, and their seniority and promotion will be governed by Rule 8 of the Rules, 1981.

 

Government of Bangladesh vs Kamrun Nahar 16 BLC (AD) 18.

751

The Constitution of Bangladesh, 1972 (Part-2)

Citation: Dhaka 17 BLC 266, 17 BLC 531, 17 BLC 844, 17 BLC 859, 11 BLC (AD) 26, 11 BLC (AD) 37, 11 BLC (AD) 90, 11 BLC (AD) 83, 11 BLC (AD) 113, 11 BLC (AD) 201, 11 BLC (AD) 218, 11 BLC (AD) 233, 11 BLC 35, 11 BLC 74, 11 BLC 72, 11 BLC 83, 11 BLC 172, 11 BLC 180,

Case Year: 1972

Subject: Constitution of Bangladesh

Delivery Date: 2018-06-25

 

Constitution of Bangladesh, 1972

 

 

Article 102

 

An application under Article 102 against any order passed under -20  Order XXI Rule 90 of the Code of Civil Procedure is misconceived. Secondly in writ of certiorari this Court certainly would be loath to interfere with a decision of the Court below as a Court of appeal.

 

Anis Ahmed vs Artha Rin Adalat No. 4, Dhaka 17 BLC 266.

 

Article 102

 

The statutory requirement to deposit legal requirements particularly in case of Artha Rin Adalat being a special law is mandatory. There cannot be any escapee from fulfillment of legal necessity as envi­saged in section 19 or likewise section 41 of the Ain.

 

Mohiuddin Mahmood vs Bangladesh 17 BLC 531.

 

Article 102

 

There was a written promise to absorb the service of the peti­tioners in the revenue budget but ignoring that promise the respondents issued fresh notice inviting applications for appointment afresh which cannot be encouraged.

 

Abdul Aziz vs Ministry of Communication 17 BLC 563.

 

Article 102

 

This court sitting in writ jurisdiction cannot not allow its process to be abused by persons in order to gain any objective or delay legitimate administrative action. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good.

 

Md Shahjahan Shanta vs Bangladesh 17 BLC 844.

 

Article 102—Public Interest Litigation

 

The Muslims are sacrificing animals in commemoration of the sacrifice of Ishmael (AS) at Eid-ul-Azha every year, for the last fourteen hundred years, as taught by the Prophet (SM) himself and none raised any question on that point. Any superficial attempt, on the part of a person who claimed to be a new Muslim to deal with such a settled matter, without adequate knowledge of the Holy Quran and other authoritative works, is not desirable at all.

 

Deb Narayan Moheswar vs Bangladesh 17 BLC 859.

 

Article 102

 

There is absolutely no truth as to the allegation of the limit of use of alcohol or rectified spirit as a raw material in the preparation and formation of the Homeopathic medicine under the provisions of Drugs Act, 1940 or the Drugs (Control) Ordinance, 1982 or no such right of use has been taken away by the Narcotics Control Act, 1990.

 

Bangladesh Homeopathic Medicine Manufacturers Association vs Bangladesh 11 BLC (AD) 26.

 

Article 102

 

In the instant case though apparently the Licence Agreement may be unobjectionable but, according to the Com­mission, the 'exclusivity clause' is injurious or illegal sealing off all the possibilities of expansion of telecommuni cation media through other agencies, thereby putting off all the activities of the Commission set for attaining the objects of the Commission and to promote the causes of National Tele-com­munication Policy, 1998. A contract or a term thereof may be invalid because its substance or purpose is contrary to public policy or because of its coercive method of procure­ment, which is contrary to public policy.

 

World Tel Bangladesh Ltd vs Ministry of Post and Telecommunications 11 BLC (AD) 37.

 

Article 102

 

The offences under sections 403-409 of the Penal Code being the scheduled offences the notice issued under section 3(2) of the Act by the Bureau of Anti-Corruption directing the writ petitioner to appear before the Bureau of Anti-Corruption with the papers mentioned therein was quite legal.

 

Ziaur Rahman vs DG, Bureau of Anti-Corruption 11 BLC (AD) 90.

 

Article 102

 

Since the respondent No.2 was a worker and served for 15 years in the appellant company, the Appellate Division is inclined to allow him (respondent No.2) to have some benefits and accordingly, allowed the appeal, but with modification, inasmuch as the order of dismissal is converted into an order of termination and the respondent No.2 shall be given termination benefits as permissible under the law.

 

Chittagong ]uie Manufacturing Co Ltd vs Chairman 1st Labour Court, Ctg. 11 BLC (AD) 83.

 

Article 102Per Md Tafazzul Islam (concurring):

 

Before the 9th Parliamentary election it is the existing electoral roll, i.e. the electoral roll of 2000, with some addition, deletions and modification as may be neces­sary, which is to be published as draft electoral roll and since the electoral roll 2000 will be the basis for preparing the draft electoral roll, the same has a continuity. It also appears that sub-rule 1 of rule 21 refers to rules 7-18 which contain the procedure for inclusion, deletion and correction and Rule 14 provides for issuance of notice in the case of correction of an entry and Rule 15 also provides for service of such notice either personally or by post.

 

Election Commission vs Alhaj Advocate Md Rahmat AH, MP 11 BLC (AD) 113.

 

Article 102

 

The learned Judges of the iigh Court Division misdirected themselves in entertaining the writ petition itself in view of the settled principle of law that the Administrative Tribunal is the proper forum for a Government Servant to agitate any violation in the matter of the service condi­tion and, in such view of the matter, impug­ned judgment of the High Court Division is liable to be set-aside.

 

Bangladesh, represented by the Secretary, Ministry of Establishment vs AKM Enayetullah 11 BLC (AD) 201.

 

Article 102Writ of certiorari—Its appli­cability

 

In the instant case there is no situa­tion i.e. there is total absence of any of the situations i.e. nonconsideration of the evi­dence, misreading of the evidence, miscons­truction of the document or misinterpretation of the law relating to abandoned property. There is also no error of procedure. This being the position, the High Court Division was in error in making the Rule absolute on the view that the Tribunal was in error in not considering the ex parte decree obtained in a suit for specific performance of contract and the kabala obtained pursuant to that decree. The law is settled now that a decree obtained in a suit for specific performance of contract for sale of the abandoned property is no bar in treating a property as abandoned property and listing the same in the list of abandoned buildings.

 

Government of the People's Republic of'Bangladesh vs Abdul Wahed Talukder 11 BLC (AD) 218.

 

Article 102

 

Keeping in mind the service rendered by the PSI Agency as in section 25A of the Customs Act and in the Contract document and the services mentioned in the "ssfiit 15351' it is seen that since the category of services mentioned in the ^JlMir to "sffiht T5??f' and the services which the PSI Agency were required to render in the light of the agreement entered into by the Government and the PSI Agency as well as per provision of section 25A of the Customs Act the services of the PSI Agency is vatable.

 

NBR, Chairman vs Interiek Testing Services International Ltd 11 BLC (AD) 233.

 

Article 102

 

It appears that since the petitioner fulfilled all the preconditions of the special order dated 30-11-1999 issued by the National Board of Revenue (NBR) regarding entitlement to rebate of 40% upon the 15% customs duty for the importation of the crude palm oil there is no hesitation to hold that the petitioner was entitled to the benefit of the said special order.

 

Bangladesh Edible Oil Ltd vs National Board of Revenue 11 BLC 35.

 

Article 102

 

The impugned decision can be regarded as a valid decision despite the fact that member Nasu Mia was absent when the argument was heard by the Labour Court in view of section 35(7) of the Industrial Relations Ordinance, 1969. Because absence of any member in course of hearing of a labour case will not affect the validity of the proceeding as well as the decision or award made by the Labour Court.

 

Crescent Jute Mills Company Ltd vs Chairman, Khulna Labour Court 11 BLC 74.

 

Article 102

 

The impugned notices requiring the petitioner company to relocate its Re-Rolling Mills are, violative of section 4(3) and its first Proviso. Besides, the impug­ned notices are discriminatory, malafide, without jurisdiction and also malice in law and are liable to be struck down.

 

Sarder Steel Re-Rolling Mills Ltd vs DG, Environment Directorate and ors 11 BLC 72.

 

Article 102

 

The Ullage Survey Report on board the vessel prevails against the Shore Tank Survey Report. The question of short­age as contemplated by item No. 24(ii) of the table under section 156(1) of the Customs Act, the 1% admissible Ocean allowance on the quantity carried by the vessel must be taken into consideration, and therefore the vessel/ carrier cannot be held responsible for any shortage below 1% and such shortage cannot be said to be an offence committed under item No. 24(ii) of the table under section 156(1) of the Customs Act, 1969.

 

Seacom Shipping Ltd vs Customs, Excise and VAT Appellate Tribunal 11 BLC 83.

 

Article 102—Commercial contract— Court can give direction—

 

The relationship between the parties arose out of a commercial contract. However, the discord between them relates to executive action or, in this case, inaction. This court, in exercise of its writ Jurisdiction, is empowered under the Consti­tution to direct the concerned authority 'to do that which he is required by law to do. When the Government has entered into a con­tractual obligation, it becomes imperative on its part to abide by the terms of the contract. It cannot choose to act as and when it pleases, it must act without delay.

 

Sirajuddin M Ashgar vs BSRS, represented by its General Manager and ors 11 BLC 172.

 

Article 102—Possession of the Chitta-gong Board Mills Ltd was directed to be given in favour of the petitioner

 

If the auction notice had specified the dues that was to be paid by the auction purchaser to BFIDC, it would be a different case altoget­her. But where there is no mention of any such dues, a claim, and that too rather belated, cannot be put up to prevent the petitioner from getting possession of the property which he purchased through a public auction. He has, acquired a legal right to the property and he cannot be deprived of the same on some technicalities, moreso when it is created by another agency of the Government. The language of Clause 10 expresses in clear and unequivocal terms that delivery of possession becomes mandatory once the sale certificate has been issued under clause 9.

 

Sirajuddin M Ashgar vs BSRS, represented by its General Manager and ors 11 BLC 172

 

Article 102

 

In the facts and circum­stances of the case and the materials on record it does not lie in the mouth of the respondent No. 2 to take the plea that the petitioners are not entitled to get benefit of rebate as well as exemption of VAT for the transactions in question as they do not qualify as "deemed export" rather, all the transactions in question come within the ambit of section 3(2) of the Act and rule 31 of the Rules and are "deemed export".

 

Rahim Steel Mills Co (Pvt) Ltd vs National Board of Revenue 11 BLC 180.

 

Article 102

 

In view of the admitted position it appears that the demands made by the respondents through Annexures A, Al and A2 appear to be unlawful and without jurisdiction. The respondents are at liberty to determine the actual amount of evasion of VAT, if any, by constituting an enquiry com­mittee in the light of the recommend a tion of the second enquiry committee report dated 14-7-1996.

 

Rahim Steel Mills Co (Pvt) Ltd vs Government of Bangladesh 11 BLC 191.

 

Article 102

 

It appears that the peti­tioner submitted the bill of entry for effecting release of six units of Volvo cars on 16-6-1998 and, therefore, liable to pay duties and taxes prevailing on the said date and accordingly, the assessment made in the relevant Customs Nothi was made in accordance with law.

 

Mahbubul Haque Sikder vs Commissioner of Customs 11 BLC 194.

 

Article 102

 

The petitioner being the defendants may still raise the question of liability which they did not raise at the time of framing of issues in the suit by filing an application under section 13 of the Artha Rin Adalat Ain, 2003 and the Court may, on such application, adjudicate upon the question of liability of the present petitioners as issues of law.

 

Prime Global Ltd vs Artha Rin Adalat 11 BLC 236.

 

Article 102

 

Under the provision of sub­section (3) of section 60 of the Ain the said proceedings shall be taken to be a pro­ceedings under the Artha Rin Adalat Ain, 2003. Therefore, the question raised can be decided at the trial of the suit and at the time of receiving evidence from the parties. Besides, the impugned order was not amenable to the writ jurisdiction as the order was passed under the repealed Artha Rin Adalat Ain, 1990.

 

Zahidi Millah vs Artha Rin Adalat, Khulna 11 BLC 238.

 

Article 102

 

The demands in question appear to have been issued pursuant to the provision of section 56 of the Act but the res­pondent cannot resort to section 56 of the Act without complying with the provisions of section 55. Therefore, it appears that in issuing the impugned demands the respon­dents have acted illegally and beyond their jurisdiction and the demands therefore, do not withstand the scrutiny of law. Thus the demands are liable to be struck down as being illegal and without jurisdiction.

 

Diamond Steel Products Co (Pvt) Ltd vs Commissioner of Customs 11 BLC 292.

 

Article 102

 

Two uncontroverted factual statements of the petitioner established beyond doubt that no landing charge and/or customs duties on insurance policy can be levied in the instant case. The demand is evidenced by Annexure C is a demand made under sub-section (2) of section 32 of the Customs Act. The law is that before issuing any such notice a show cause has to be issued asking the assessee to explain why the omitted portion of the duty will not be realised from him. Is a demand made without giving any opportunity to the petitioner to explain his position. The demand as evidenced by Annexure A to the application lacks sanction of law and issued illegally and without jurisdiction which does not stand the scrutiny of law liable to be struck down as an act malafide and without jurisdiction.

 

Diamond Steel Products Co (Pvt) Ltd vs Commissioner of Customs 11 BLC 303.

 

Article 102

 

Notice of eviction was issued without lawful authority—Clearly the land described in the notice is not identifiable because firstly, it does not state which part of the CS plot or the corresponding SA and RS plot is the subject matter of eviction and secondly, the acquisition authority namely, District Land/Revenue office Dhaka did not specify such part in their document of delivery of possession .Again, it is not clear whether the map (Annexure-IV) was pre­pared by RAJUK on the basis of any map prepared by the concerned land acquiring authority, and apparently, they have not even endorsed it. The notice of eviction dated 22-8-2004 issued by RAJUK is declared to be without lawful authority and is of no legal effect.

 

M Sayeedur Rahman Al-Mahbubi vs RAJUK 11 BLC 316.

 

Article 102

 

Since there is no laches in fulfilling the conditions of the standing order the respondents are duty bound to perform their duty as contemplated in clause 'Ga' of the said standing order. As such, passing of the impugned orders are without any jurisdiction and are liable to be set-aside.

 

Rangs Industries Ltd vs Commissioner of Customs 11 BLC 310.

 

Article 102

 

The respondents have not controverted or denied the issuance of the certificates by the customs in favour of the petitioner certifying that the petitioner imported the aforesaid consignments of capital machinery and accessories and upon clearance of the same set up its textile industry and produced cotton yarns and exported the same in due compliance of the said undertakings. Accordingly, the peti­tioner by a letter dated 19-7-1997, Annexure-A to the Writ Petition No. 3942 of 2002, requested the Commissioner of Customs to return the said Indemnity Bonds but without any response. The customs nonetheless made the impugned demands to pay the customs duty on the ground that the petitioner breached the undertakings given in the said Indemnity Bonds. The impugned Notices dated 31-10-2000 and 1-7-2004 under section 202 and demand dated 26-10-2004 are not only illegal, malafide and without juris-diction bvtt they also offend the principle of legitimate expectation and are malice in law.

 

Panna Textile Mills Ltd vs Commissioner of Customs 11 BLC 349.

 

Article 102

 

It appears that the peti­tioner has filed application to the Secretary of the Ministry but under no circumstances this application can be considered as it is not in accordance with Public Procurement Regula­tions, 2003. He has to file an application with the tender procuring entity as per Regulation 51 of the said Regulations and thereafter, he can also pray for review. The petitioner filed application with the secretary which is not in accordance with law. Further, it appears that the petitioner is an agent of the British Polar Engines, but no power, as such, has been filed before filing the writ petition before this Court that he has the power or he is an agent. He is neither coming in the proper forum nor any power of attorney has been annexed to the instant writ petition. Under these facts and circumstances, the High Court Division did not find any substance in this Rule.

 

Marine Contacts vs People's Republic of Bangla­desh 11 BLC 357.

 

Article 102

 

In the absence of adjudica­tion of the matter as to whether the debt for the repayment whereof the property was mortgaged has been repaid or satisfied by this time and that as there are contentious claims of the parties as to proprietorship of the property that was placed in the manage­ment of the Court of Wards and that later on mortgaged in 1908 for securing payment of debt of Taka 14 lacto the Secretary of Stale for India (3rd party in the mortgage deed), the property cannot be released from the management of the Court of Wards and, as such, the petitioner's prayer for release of the property from the management of the Court of Wards is not legally entertainable.

 

Nawab Khaja Habibullah Askari vs Bangladesh 11 BLC 525.

 

Article 102

 

The petitioner Nos. 1 and 2, after working for so many years as such Assistant Commissioners suddenly were reverted back to Grade VI postings without any rhyme or reason. If they were not to be confirmed in Grade V then the Government in the first place, ought not to have posted them as such Assistant Commissioners but after having done so and received their such service in the said post of Assistant Commissioners, to the satisfaction of their Superior Officers, it is very unfair on the part of the Government to revert them back in Grade VI for no fault of the petitioners. Under such circumstances, the respondents were directed to treat the petitioner Nos. 1 and 2 in Grade V since their postings as Assistant Commissioners by the Notification dated 6-9-1983 with all ancillary financial and other benefits within one month from the date of receipt of this judgment. So far as the petitioner Nos. 3 and 4 are concerned it appears that although they were appointed Circle Officer (Development) since 20-5-1977 but they were placed in Grade V on 15-1-1984 but for reasons which were not explained by the learned Assistant Attorney-General, they were not promoted for the last nearly 21 years or so. In respect of the petitioner Nos. 3 and 4 the High Court Division observed that the Government should treat all their employees and officers without any discrimination and fairly in respect of their terms and conditions of service which includes the promotion of the petitioners also. The petitioner Nos. 3 and 4 are also entitled to financial and other benefits in accordance with the Service Rules and regulations since their posting on 15-1-1984 in Grade V.

 

Serajul Rahman vs Bangladesh and 2 others 11 BLC 557.

 

Article 102

 

There is nothing before the Court to show that the Vice-Chancellor formed an opinion that an urgent situation was prevailing and that a decision regarding the appointment of respondent No.6 is to be taken or the impugned Memo is to be issued on an urgent basis without taking the Syndicate's approval. In the absence of such opinion as to the necessity of the issuance of the impugned Memo on an urgent basis it cannot be said that an urgent situation was existing requiring the invoking of section 14(12) of the BSMMU Act, 1998.

 

Dr Kanak Kanti Barua vs Bangladesh Sheikh Mujib Medical University 11 BLC 563.

 

Article 102Locus standi—Aggrieved person

 

There remains nothing to advert to the question of maintainability of the instant application inasmuch as without entering into the controversy as to whether the petitioner No. 6 has any locus standi to prefer this application. Suffice it to say that from the averments made in the writ petition it is clear that the other petitioners, namely, petitioner Nos. 1-5, come within the meaning of "aggrieved person" as contemplated in Article 102 of the Constitution and, in fact, the learned Additional Attorney-General did not advance argument on the locus standi of these parties. Be that as it may, it can be said that the petition is maintainable at least by the petitioner Nos. 1-5 as they are persons aggrieved and actually affected by the clarification given by the Board.

 

Mir Akhtar Hossain Ltd vs Chairman, NBR 11 BLC 587.

 

Article 102

 

There is no hesitation to arrive at a finding that in issuing the clarification dated 4-4-2002 as evidenced by Annexure 'A(l)' the Board has outstepped their authority and has made the SRO dated 6-1-2002 as evidenced by Annexure 'A' to the application retrospective in operation though admittedly it is prospective. Thus, the clarification issued by the Board is absolutely contrary to the contents of the SRO as it clearly shows that it is prospective in operation and also appears to be without jurisdiction as it affects the vested right of the petitioners.

 

Mir Akhtar Hossain Ltd vs Chairman, NBR 11 BLC 587

 

Article 102Maintainability of Writ petition

 

It has been contended on behalf of the respondents that the instant writ petition is not maintainable because the petitioners have no locus standi to file the writ petition under Article 102 of the Constitution. It has been held by the Appellate Division in two cases that the courts of Bangladesh have shifted their position to a great extent from the traditional rule of standing which confines access to the judicial process only to those to whom legal injuries are caused or legal wrong is done. The narrow definition within which the provision of standing was imprisoned for long years has been broken and new dimension has been given to the doctrine of locus standi. Their Lordships observed that the words, 'any person aggrieved' should be construed liberally and given a.wider meaning. In view of such decision the instant writ petition is maintainable. Moreso, vires of law/ regulation has been challenged in the instant writ petition.

 

Ruhul Antin (Md) vs Bangladesh 11 BLC 599.

 

Article 102

 

The learned Assistant Attorney-General has referred sections 8 and 9 of the Ordinance of 1977 to show that neither transfer of the line from PDB to REB can be challenged on the ground of lack of authority nor the rate as mentioned by the Samity is to be held arbitrary or in violation of section 9(c)(d) because the Samity cannot impose any charge without approval of the PDB. He also placed before the High Court Division three unreported decisions wherein it has been held that the Government has ample power to transfer the line from PDB to REB and, that whether or not lines have been transferred from Municipal area to other places all disputed questions of fact cannot be decided sitting in exercise of power under Article 102 of the Constitution. Regarding higher rate of bills, the learned Assistant Attorney-General referred an unreported decision of the Appellate Division wherein it as been held that no law however has been cited to show that such right exists in the petitioner to enter into bargain concerning the fixation of rate and in the absence of such right the writ petition is not maintainable. Accordingly, the Rules were discharged.

 

Abdul Wadud Khandoker vs PDB 11 BLC 634.

 

Article 102

 

Since the cancellation of the petitioners' lease in respect of the case land and the alleged order of allotment in respect thereof in favour of the new lessees, namely, Hossain Ali and Awal Hossain, have been declared to have been passed without any lawful authority and are of no legal effect by the judgment and order passed in Writ Petition No. 2011 of 1994 and since no appeal has been preferred against the said judgment and order and the same having been not set-aside the same still stands active. The respon­dents are directed to hand over peaceful pos­session of the land in question as contained in plot No. 17/13 measuring an area of 277.56 sq. yards of Block-F, Mohammadpur Hou­sing Estate, Dhaka in favour of the petitioners immediately in compliance of the judgment and order dated 30-4-1998 passed by the High Court Division in Writ Petition No. 2011 of 1994.

 

Golam Mustafa (Md) vs Bangladesh 11 BLC 680.

 

Article 102

 

The petitioner deserves sympathetic and preferential treatment from the concerned authority and so, in case of transfer of the above Plot No.4, the authority concerned should give the petitioner preferable treatment and in the meantime the possession of the petitioner in the above plot No.4, through their tenant, should not also be disturbed till transfer of the same.

 

Sadharan Bima Corporation vs First Court of Settlement 12 BLC (AD) 57.

 

Article 102

 

Considering the offer of the writ petitioners to pay maximum fine i.e. 10 times of the fees for sanction of the plan as per rules, the High Court Division passed the impugned order directing to give sanction/ approval to the plan which has remained pending/unattended by RAJUK for a long time but directed payment of 10 times of the fees for the sanction. It appears that the High Court Division committed no error in the decision.

 

Rajdhani Unnayan Kartripakkha vs Jamuna Builders Ltd 12 BLC (AD) 84.

 

Article 102

 

The scope of action as con­templated under section 5 is of little consequence to the workers although a scheme of the Companies Profits (Workers' Participation) Act, 1968 confers a right on the workers to have such Fund established for their benefit. Section 5 therefore, offers a limited scope for redressal of the grievance of the aggrieved workers when the company refused to establish such Fund. In case a company to which the scheme under the Act applies defaults to establish such Fund any collective bargaining agent or even a worker may apply to the Labour Court under section 34 of the said Ordinance for enforcement of such right guaranteed or secured to it by law.

 

Hotel Agrabad Ltd vs Chairman, First Labour Court 12 BLC (AD) 109.

 

Article 102

 

After the completion of Phase-I DANIDA agreed and undertook to finance Phase II of the Project only with regard to IPM section leaving out other four sections of the Project. This ground reality induced the Government to amend the Phase-II Project Proforma. In this background of the case, the appellants committed no illegality or acted without lawful authority in bringing amendment or change in the Project Proforma either with regard to the recruit­ment of personnel in Phase-II of the Project by inviting fresh applications for appoint­ment in the posts advertised in the news­papers and also for deleting the provision for transfer of the Project personnel to the Revenue Budget of the Government.

 

Bangla­desh vs Jahangir Alam 12 BLC (AD) 163.

 

Article 102

 

In the circumstances simply because the notice under the Bankruptcy Act, 1997 was stayed by this Court it cannot be said that the demand for repayment of the loan amount was also stayed by this Hon'ble Court and therefore, the petitioner's status as a borrower who has defaulted in repaying the instalments remains unchanged. As a natural result of the said default the respon­dent Sonali Bank sent the loan status of the petitioner's account to Bangladesh Bank who again, in normal course of business, included the petitioner's name in the CIB Report. There is no illegality on the part of the Bangladesh Bank and Sonali Bank to do what they did pursuant to section 27 Kaka of the Bank Companies Act 1991. To do otherwise would have been an illegality.

 

Major Monjur Quader (Retd) vs Bangladesh Bank 12 BLC 105.

 

Article 102

 

Since section 27 Kaka of the Bank Companies Act, 1991 came into force when the petitioner was neither a share holder of the said company nor a Member of the Board of Directors of the borrower company, his share having been validly transferred prior to that date, he is only liable for repayment of the loan by virtue of his personal guarantee to the bank. As stated in our judgment in Writ Petition No. 3931 of 2001, a guarantor's liability will not attract the provisions of section 27 Kaka of the Bank Companies Act, 1991 and, as such, the petitioner's name cannot be included in the CIB list. The issues discussed in Writ Petition No. 3931 of 2001 will govern the issue in the instant case as well. The inclusion of the name of the petitioner in the impugned CIB Report No. 3(45) 2001-3292 dated 17-4-2001 issued by the respondent No. 1, in so far as it relates to classified Borrower Code No. 193840, is hereby declared to have been made without lawful authority and is of no legal effect.

 

Major Monjur Quader (Retd) vs Bangladesh Bank 12 BLC 111.

 

Article 102

 

In the instant case, admit­tedly the respondent No. 2 has himself not misappropriated any fund of the petitioner Mill and though he has committed an act of misconduct by complying with the unlawful order of his superior officer to compete with the competitors. His previous service record has been found to be satisfactory. So, in awarding punishment under this Act, it is within discretion of the employer to consider the gravity of the misconduct, the previous record and also any other extenuating cir­cumstance that may exist. Relying on the decision reported in 45 DLR (AD) 61 it is held that the respondent No. 1, Divisional Labour Court, Khulna rightly passed the impugned judgment and order dated 18-1-2001 con­verting the order of dismissal into an order of discharge and, as such, no interference is called for.

 

Star Jute Mills Ltd vs Chairman, Divisional Labour Court 12 BLC 289.

 

Article 102

 

It is evident that the writ petitioners were appointed as part-time teachers and till date they are continuing as part-time teachers and, as such, the writ petitioners, being of different category i.e. part-time teachers, are not entitled to be included in the seniority list with other full-time regular teachers. They, as part-time teachers, are not entitled also to be included in the MPO list for getting government grant and allowances.

 

Syeda Nahrin Afroz vs Secretary, Ministry of Education 12 BLC 315.

 

Article 102

 

That no licence is required to possess arms like dagger or gachi dao and those arms were not recovered from the accused petitioners within the area specified by Gazette Notification by the Government as indicated in section 15 of the Arms Act. It was therefore necessary for the prosecution to prove the existence of such notification under section 15 of the Arms Act. As such, no offence had been committed by the petitioners under the Arms Act and, as such, the cognisance taken by the Tribunal in the trial of the two petitioners under the Arms Act is without jurisdiction.

 

Ali Hossen @ AH tmd vs Bangladesh 12 BLC 379.

 

Article 102

 

It is contended on behalf of the petitioner that he relied on his engaged Advocate, who kept him in the dark about the dismissal of the case, rather his Advocate kept him informed that the case was then pending. When the petitioner went to the Settlement Court in connection with other cases he came to know about such dismissal for the first time and then filed the writ petition after procuring certified copy of the impugned judgment and order and thus caused inordinate delay of 11 years in filing the writ petition. The Court of Settlement including the Supreme Court have already excluded the other properties of the peti­tioner from the list of abandoned properties. The petitioner would not wilfully allow the case to be dismissed. In such circumstances, the petitioner should be given a chance to have his claim examined by the Settlement Court. Accordingly, the case was sent back on remand to the Court of Settlement for giving appropriate decision in accordance with law.

 

Ali Akbar Ansari vs Chairman, Court of Settlement 12 BLC 423.

 

Article 102

 

Where the respondent-Government in writ jurisdiction passed an order allowing the revision and changing the order of dismissal into reduction to lower rank, whereby the petitioner has acquired a vested right in view of the decision passed in revisional jurisdiction and the respondent-Government for administrative inconven­ience or difficulties cannot -review its own decision passed in revisional jurisdiction without giving the petitioner any oppor­tunity of being heard. In asmuch as section 7A of the Ordinance, 1976 does not empower the Government to review its own decision passed in revisional jurisdiction. For the aforesaid reasons the writ petition is maintainable.

 

Idrish Mahmud (Md) vs Secretary, Ministry of Home, Police Division 12 BLC 445.

 

Article 102

 

Since the respondents did not appear the statements of fact made in the writ petition are being treated as true and genuine for the purpose of disposal of the Rule.

 

 Monzur Islam (Md) vs Commissioner of Customs 12 BLC 460.

 

Article 102

 

In the instant case, it appears that the goods were seized on 14-10-05, and the show-cause notice under section 180 of the Customs Act was issued on 11-6-06, i.e. long after eight months from the date of seizure, and thus the Customs officials have violated the provisions of law in not returning the goods to the petitioner, after expiry of two months, in spite of requests made from time to time and production of all legal documents.

 

Monzur Islam (Md) vs Commissioner of Customs 12 BLC 460.

 

Article 102

 

The terms and conditions of the tender, sale notice schedule published in Bangladesh Gazette with regard to schedule Mohal had been made part of the agreement. It is thus clear that the petitioners are liable in law to pay VAT on the tender value of the "Bash Mahals".

 

Kadar Ali vs Chief Conservator of Forests 12 BLC 475.

 

Article 102

 

In the present case, the relief sought by the Writ Petitioners is a direction upon the respondents to perform the function and actions of the Republic in respect of payment of salary to the petitioners in the scales of Taka 625-45-985-EB-1315, Grade No. XI of New National Grades and Scales of 1977 and to its corresponding scales of pay of 1985,1991,1997 and 2005 including the time scales and selection Grades, which direction the Administrative Tribunal has no jurisdiction to give, and, as such, the present Writ Petition is maintainable.

 

Syed Md Sharif vs Bangladesh 12 BLC 480.

 

Article 102

 

Considering the facts and materials it appears that the respondents have failed to perform their obligation by not paying the petitioners their due Grades and scales as given under New National Grades and Scales of Pay of 1977 and to its corres­ponding scales of pay of 1985,1991,1997 and 2005 including the time scales and selection Grades instead of the scales of pay Taka 400-825 No. XIV of New National Grades and Scales of Pay of 1997 and to its corresponding scales of pay of 1985, 1991, 1997 and 2005.

 

Syed Md Sharif vs Bangladesh 12 BLC 480.

 

Article 102

 

In this instant case, mere direction was sought for conducting an enquiry for ascertaining the legality or otherwise of the composition and locus standi of the Executive Committee of the respon­dent No. 4, Coats Bangladesh Ltd and for taking action as per terms of section 13 of the Industrial Relations Ordinance, 1969 read with Rule 10 of the Industrial Relations Rules, 1977. Thus the respondent Nos. 2 and 3 were directed to conduct an enquiry for taking necessary steps as per section 13 of the Industrial Relations Ordinance, 1969 read with rule 10 of the Industrial Relations Rules, 1977.

 

Bangladesh Ltd vs Secretary, Ministry of Labour and Employment 12 BLC 502.

 

Article 102

 

Section 3 of the Acquisition and Requisition of Immovable Property Ordinance, 1982 requires the service of notice in the prescribed manner at a convenient place. or near the property proposed to be acquired. There is no requirement for service of notice personally on the petitioners claiming ownership of the land sought to be acquired. It is sufficient if it is served even near the proceedings land. Annexure-3 series in the affidavit-in-opposition of the respon­dent No. 3 Additional Land Acquisition Officer, are copies of notices believed to be served upon the petitioners. The petitioners' statements in the Writ petitions that no notice under section 3 was served appears to be false statements, the only purpose of which appears to be to obtain the aforesaid Rules and delay the acquisition proceedings. Needless to say that such practice is seriously deprecated by the High Court Division.

 

Ameenah Ahmed vs Bangladesh 12 BLC 514.

 

Article 102

 

The respondents are strongly denying that there is a mosque and graveyard on the petitioners' land. Whether there is any mosque or graveyard in the proceeding land is a disputed question of fact and such quention cannot be decided in writ jurisdiction. However, for strict compliance of the provisions of law that mosques and graveyards are to be excluded from the acquisition proceedings. If there is any mosque or graveyard on the petitioners' land, the same should be kept outside the acquisi­tion proceedings in accordance with the law.

 

Ameenah Ahmed vs Bangladesh 12 BLC 514.

 

Article 102

 

What is important in deter­mining whether a person is a worker or not is to see the main nature of the job done by him and not so much his designation. In the instant case, there is nothing on record to show that the petitioner although employed in a supervisory capacity, exercised either by nature of the duties attached to the office or by reason of power vested in him, functions mainly of managerial or administrative nature. In view of the aforesaid nature of work performed and the extent of authority exercised by the petitioner, it is evident that the petitioner is a worker within the meaning of section 2(v) of the Employment of Labour (Standing Orders) Act, 1965.

 

Abdur Razzaque Mondal (Md) vs Bangladesh 12 BLC 546.

 

Article 102Res-judicata

 

When the issue as to the veracity of the suspension order dated 7-3-2001 had already been decided between the same parties in the IRO Case No. 22 of 2000 by the Labour Court the same issue as to the veracity of the same suspension order dated 7-3-2000 operates as res judicata and no fresh petition can be brought to agitate the self-same issue in the instant Writ petition and, for that matter too, the part of the Rule issued is also not maintainable.

 

Abdur Razzaque Mondal (Md) vs Bangladesh 12 BLC 546.

 

Article 102

 

The application filed by the present petitioner is pending before respon­dent No. 6, whereas the application filed by the respondent No. 7 is lying with respon­dent No. 1 for disposal. As per the Ordinance, respondent No. 6 is the competent authority for taking a decision in granting Trade Organisation Licence in favour of any Organisation. It would be fair if both the applications are placed before respondent No. 6 along with all relevant documents and reports for his perusal and decision in accordance with law.

 

Nurul Islam vs Bangladesh 12 BLC 557.

 

Article 102

 

The petitioners as contin­gent staffs were in temporary employment of the Government and were not entitled to any notice or show cause before termination of their service. Their employ-ment was contingent upon the requirement of employer and when the employer was not in need of their services, he had the right of terminating their services with immediate effect. However, when the petitioners were made permanent servant of the Republic by converting their status as regular they were entitled to a minimum show cause notice before issuance of the impugned Memo removing them from their posts. The absence of such prior show cause notice is also a violation of the rule of natural justice . Their services in the Republic had not been regu­larised. In such a situation if they went to the Administrative Tribunal to agitate their grievances, their case will not be maintain­able for being barred by limitation and they will have no other option but to come to this court under Article 102 of the Constitution of the People's Republic of Bangladesh.

 

Kajimuddin (Md) vs Bangladesh 12 BLC 565.

 

Article 102

 

The petitioner being a defendant in the suit having not contested the same, preferring of the writ petition without availing the forum of appeal as provided under section 41 of the Ain or challenging the ex parte decree under section 19 of the Ain, the writ petition is not maintainable.

 

 KM Hamdor Rahman vs National Housing Finance & Investments Ltd 12 BLC 578.

 

Article 102

 

It appears that the decree passed in 1991 is a decree passed by the Artha Rin Adalat and for execution of the said decree the execution case filed in 1992 was also filed before the Artha Rin Adalat since there was no suit of the Financial Institutions pending before any Commercial Court after 1990. Thereafter, Artha Rin Adalat Ain 2003 having come into force on 1-5-2003 upon repealing the Ain of 1990, the said execution case was transferred to the Artha Rin Adalat constituted under the Ain 2003 pursuant to section 60(3) of the said Ain. As such, dismissal of the said execution case on 16-5-2003 for default was made by the Adalat constituted under Ain 2003. Hence, filing of the second execution case on 13-11-2003 is very much within one year of the dismissal of the earlier case and is wholly within the scope of section 28(3) of the said Ain of 2003. Thus, there is no illegality in filing of the execution case and continuation of the proceeding of the same.

 

Khurshid Alam (Md) vs Judge, Artha Rin Adalat 12 BLC 592.

 

Article 102

 

The granting of a licence to possess firearms granted by the authorities and that a citizen has common law or legal right to go for a licence to possess a gun or pistol and hence it is a discretion on the part of the Government (Authority) to grant arms licence to the citizen and to cancel them when the authorities deem it necessary for the security of public peace and the cancellation of licence is an administrative order and the order by no imagination can be treated as judicial order hence the making of a speaking order is not called for. The right to licence of an arms may be a legal right but not a fundamental right. Furthermore, funda­mental right has been suspended by the declaration of emergency.

 

SM Halim Reza vs Secretary, Ministry of Home Aairs 12 BLC 597.

 

Article 102

 

The CPLA No. 937 of 2005 was dismissed and thereby the judgment and order passed in Writ Petition No. 5807 of 2004 revived and remained unaltered and is in force and therefore the judgment and order passed in Writ Petition No. 5807 of 2004 is binding on the parties. In the instant case, it appears that the election of 31-7-2005 was conducted at the instance of the Committee, which was declared to be illegal and without lawful authority by the judgment passed in Writ Petition No. 5807 of 2004, and the said writ petition being mainly for holding of free and fair election of a Managing Committee of the Samity, the election as held by the said illegal Committee on 31-7-2005 cannot be said to be bonafide and the election con­ducted by an illegal authority cannot sustain in the eye of law.

 

SM Delwar Hossain vs Bangladesh 12 BLC 601.

 

Article 102—"Rastrio Sammani Bhata" of the freedom fighters—

 

The impugned memos issued by the respondent No. 3 curtailing/ reducing the "Rastrio Sammani Bhata" of the petitioners suffer from legal infirmities which call for interference. Thus the Rule having merit succeeds. The respondents are directed to cause payment of "Rastrio Sammani Bhata" to the respective petitioners fixed at the time of award of the "Rastrio Sammani Bhata" in January, 1999.

 

Shamsuddoha vs Bangladesh 12 BLC 616.

 

Article 102

 

The essential feature of the principle of natural justice is simply that no person shall be deprived of any vested right by any order, judicial or otherwise without a hearing before an independent authority, not interested in the proceedings or in any party to the proceedings. No person can be con­demned without an opportunity to defend himself. The vested right to receive "Rastrio Sammani Bhata" cannot be taken away without giving them any opportunity to be heard, even if there is no specific provision to show cause.

 

Shamsuddoha vs Bangladesh 12 BLC 616.

 

Article 102

 

The respective petitioners appeared in their respective LL.B. final exa­minations and the respective results were published in the year 1990 and 1992. The peti­tioner Advocate Abu Md Zia Habib Ahsan and the petitioner Advocate Jesmin Sultana procured marks-sheets and the provisional LL.B. Degree Certificates and the petitioner Faisal Mahmud Faizee, hereinafter referred to as Mr Faizee, procured the provisional LL.B. Degree certificate. They also procured the testimonials from their respective law colleges. Thereafter, they appeared before the Bangladesh Bar Council and got enrolled themselves as Advocates with permission to practice in the District Courts and thereafter, in due course, on their prayers they were per­mitted to practice in the High Court Division of the Supreme Court of Bangladesh and thus they became Advocates of the High Court Division of the Supreme Court of Bangla­desh.

 

In view of the findings that (1) the notices dated 1-3-07 calling and convening the Syndicate's Extraordinary meeting held on 3-3-07 not being proper, since not served on five (5) out of fourteen (14) members of the Syndicate, the meeting as held suffers from illegality, (2) there was violation of the principles of natural justice in cancelling the results, (3) there was no proper application of mind of the syndicate members in taking the decision for cancellation of the results, (4) there is no proof of involvement of the peti­tioners in the alleged erasement and overwriting in the Tabulation sheets, (5) there is no proof that the marks appearing in the Tabulation-sheets are incorrect and (6) there was inordinate delay in passing impugned decision of cancellation of the results, for which the University is solely responsible and is hit by the principle of estoppel and equity, so the petitioners should not be punished. Thus, all the Rules are absolute.

 

Advocate AM Zia Habib Ahsan vs Chittagong University 12 BLC 679.

 

Article 102

 

In the instant cases, it was admitted in evidence on behalf of the Corpo­ration that no show cause notice in and of the 64 claim cases in Writ Petition Nos. 3811 of 2004 and 45 claim cases in Writ Petition No. 3812 of 2004 was served upon the employees. Soon after the alleged shortfall was detected the concerned workers were not given any opportunity to explain the alleged shortfall. The huge amount was however deducted from their wages just at the time of their retirement on the plea of shortfall of cargo from time to time during their employment. Such situation is totally in breach of the rules of natural justice and unfair to the concerned respondents of the cases. This also finds sup­port from a number of unreported decisions of this Court. Both the Rules are discharged.

 

Bangladesh Inland Water Transport Corporation vs Labour Appellate Tribunal 12 BLC 713.

 

Article 102

 

It transpires that section 14A of Public Corporations (Management Co-ordination) (Amendment) Act, 1994 embraces each of the petitioners in all the writ petitions. Therefore, they are supposed to go for retirement on their attainment of 60 years of age and not 57 years of age as con-templated by the authority concerned. More particularly when from a close scrutiny of the provision of law and the facts involved in each of the cases it appears that each of the petitioners cannot but be treated as worker employed within the respective enterprise and that their cases are not also covered by the proviso to section 14A of the said amended Ordinance. Even in view of the non-disclosure of their job description in the writ petition would in no way disentitle them to be treated as "workers" under their res­pective enterprises. The impugned orders in the respective writ petitions are hereby set-aside and declared to have been made without lawful authority and are of no legal effect.

 

Slwheb Ali vs Platinum Jubilee Jute Mills Ltd 12 BLC 730.

 

Article 102

 

Since there is specific alter­native remedy available to the petitioners they can agitate the matter before the Admi­nistrative Tribunal and not under Article 102 of the Constitution before the High Court Division.

 

Matiur Rahman Khan (Md) vs Bangla­desh 12 BLC 734.

 

Article 102

 

It appears that the procee­ding which were filed under the Artha Rin Ain 1990 but proceeded when the Artha Rin Adalat Ain, 2003 came into force, shall proceed as per provision of the Artha Rin Adalat Ain, 2003 as far as it practical. So, from this provision it appears that the execution case has been proceeding in accordance with law. It does not appear from the impugned orders that the petitioner filed any applica­tion before the executing Court bringing allegation that the execution case has not been proceeded as per direction of the High Court Division passed in the writ petition. There is no substance in this writ petition to interfere with the impugned order.

 

Shahjahan Mia (Md) vs Government of Bangladesh 12 BLC 742.

 

Article 102

 

It appears from Annexures-D to D-13 (14 Annexures) that the principals of the respective colleges wrote letters to Director General, Secondary and Higher Secondary Education Directorate requesting him for including the names of writ petitioner Nos. 1-14 in the MPO. Considering these facts and circumstances, the respondent No. 2, Director General, Secondary and Higher Secondary Education Directorate is directed to consider and dispose of the above mentioned letters of the principals of the colleges as evidenced from Annexures-D to D-13 (14 Annexures) to the Writ petition within a period of one month from the date of receipt of copy of this order.

 

Nazrul Islam vs Bangladesh 12 BLC 823.

 

Article 102

 

The High Court Division held that no proceeding was started against the respondent No. 8 and no inquiry was initiated before placing him under suspen­sion and, as such, the order of suspension is ex-fade illegal and the said order has been made in violation of the Rules. Therefore, in the facts and circumstances of the case and in view of the discussion made above, we are of the view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision.

 

Abdul Jabbar vs Bangladesh 13 BLC (AD) 51.

 

Article 102

 

Learned Deputy General contends that possession of the writ petitioner's requisitioned property had not been taken over by the Authority and the same had been de-requisitioned at the initial stage under section 8B of the (Emergency) Requisition of Property Act, 1948. In such view of the matter, there is no reason to review/revise the finding and observations of the Appellate Division dated 4-8-1997 passed in CPLA No. 567 of 1996. While allowing the appeal the Appellate Division has maintained the possession of the respondent in respect of 15 decimals of land out of 0.66 acre of land already handed over to respondent.

 

Secretary, Ministry of LA & LR vs Sultana Ferdous Ara Khanam 13 BLC (AD) 93.

 

Article 102

 

In the suit in hand the pro­visions of sub-section (6) of section 12 of Ain 2003 are not applicable as the instant suit being filed on 4-11-1999 there was no scope for compliance with the provisions of sub­section (3) of the section 12 of the Ain, 2003 which came into force on 10-3-2003 and further, the contents of the order dated 16-5-2003 passed in the instant suit reveals that the petitioner, though filed an application under section 49 of the Ain of 2003 praying for allowing him to repay the outstanding dues by installments but did not file any applica­tion before the Artha Rin Adalat praying for selling the mortgaged property in terms of sub-section (3) of section 12 of Ain 2003 and now, in the writ petition the petitioner, for the first time, tried to make out a case that the Artha Rin Adalat should have complied with the provision of sub-section (6) of section 12 of Ain, 2003. The High Court Division on due consideration of the materials on record and the law involved discharged the Rule.

 

AQM Shah Alam Chowdhury vs Bangladesh 13 BLC (AD) 122.

 

Article 102

 

The Court of fact on due consideration of the materials placed before it held that claimant of the property failed to establish that whereabouts of Asgar Ali, the owner, were known after emergence of Bangladesh, particularly on February 28, 1972 when President's Order 16 of 1972 was promulgated, was not established and that said Asgar Ali managed, supervised and possessed the property in question after emergence of Bangladesh and that by Akbar Ali till 1979. The High Court Division was not in error in discharging the Rule.

 

Fazlur Rahman vs Chairman, First Court of Settlement 13 BLC (AD) 125.

 

Article 102

 

Admittedly the writ-peti­tioner took lease of the case property as a DN holder of the Government in 1975. To put it differently, the Government has been possessing the case property through its allottee. As the Government has been in possession of the case property through the writ-petitioner, the Government did not take over possession thereof from its own allottee before enlistment thereof in the 'Ka' list of abandoned building published in the Bangladesh Gazette on 23-9-1986. In such a situation the submission is that the Govern­ment must have taken over the possession of the case property before its inclusion in the 'Ka' list of abandoned building falls to the ground.

 

 Marziana Khatun vs Bangladesh 13 BLC (AD) 140.

 

Article 102

 

The remedy in the writ jurisdiction is an equitable one and to seek the same one must come with clean hands and since two Judges of the High Court Division held that the petitioner did not come to the High Court Division with clean hands have rightly found the writ petition as not maintainable.

 

Oriental Bank Ltd vs AB Siddiq (Ludu) 13 BLC (AD) 144.

 

Article 102

 

The petitioner claims that he is a co-sharer of the property which was taken over by the relevant authority as vested property initiating VP cases. The property is admittedly in possession of the vested property authority. Unless the petitioner establishes his title over the land and recovers possession by a decree obtained in competent Civil Court no effectual remedy can be obtained by the petitioner. The question of ownership of the peti tioner in the property and his citizenship could only be determined by a competent civil Court in a properly framed suit.

 

Achyutananda Das vs Bangladesh 13 BLC (AD) 147.

 

Article 102

 

In the instant case, the compensation has not yet been paid to the petitioner and he has been possessing the land in question. Moreover, the respondents failed to produce any gazette notification about taking over the possession. On plain reading of sections 7 and 12 of the Ordinance, it appears that the spirit of law or the intention of the legislature is to make payment of compensation to a citizen within the shortest time, without causing any loss to him. But in the instant case, the respondents failed to comply with the provisions of law and intention of the legislature and, as such, the continuation of the proceedings is illegal.

 

Naznd Mam vs Bangladesh 13 BLC 39.

 

Article 102Co-operative Society members are not entitled to get waiver of agricultural loan

 

The object of the Govern­ment's exemption of agricultural loan upto Taka 5,000 was to give benefit only to the direct loanees of the Banks. The Co-operative Society members get loan through Co­operative Societies/groups. Since, co-opera­tive society members are not direct borrowers of agricultural loan from lending banks, they have been excluded from the exemption.

 

Nawabgonj Central Co-operative Bank Ltd vs Government of Bangladesh 13 BLC 46.

 

Article 102

 

Both parties alleged fraud against each other. Whether there was any fraud or not itself is also disputed question of fact and its answer will depend on the answer to the question whether the petitioner is the real owner of the flats or whether she is only custodian of the flats and the judgment-debtor No. 2 is the real owner. Considering the facts and circumstances of the case and the provision of section 32(2) of the Ain, the petitioner is required to furnish security to the extent of 25% of the decretal amount to maintain an application under the Code.

 

Rashida Mahabub vs IFIC Bank Ltd 13 BLC 78.

 

Article 102

 

Admittedly, a Money Changer licence was issued by the Bank to the petitioner in accordance with the provi­sion of section 3 of the Foreign Exchange Regulation Act, 1947 on 15th June, 1997 subject to the terms and conditions of the letter dated 15th June, 1977. Admittedly, the petitioner himself admitted the first irregula­rities found on inspection. Thus, we find no illegality in the impugned order cancelling the licence of the petitioner. This irregularity, in our opinion, is a gross irregularity in case of a money changer business and not a nominal one as contended by Mr Chow-dhury.

 

Mosharraf Hossain (Md) vs Bangladesh Bank 13 BLC 98.

 

Article 102

 

The petitioner has miserably failed to cross the first hurdle as to the question of maintainability of the instant writ petition mainly on two counts. Firstly, since the Bankruptcy Act is a special law and special provision having been provided in section 96 of the Bankruptcy Act, 1997 for preferring appeal against the judgment and decree passed by the Bankruptcy Court and therefore, the question of entertaining an application under Article 102 of the Constitu­tion does not arise at all. Secondly, whether notices/summons were properly served or not or whether the petitioner was a guarantor /mere a shareholder of the borrower com­pany or borrowed money from the bank or not are disputed question of facts and for which remedy lies in the Civil Court and, not under summary Writ Jurisdiction.

 

Mir Niaz Mohammad vs Additional District Judge 13 BLC 108.

 

752

THE EVIDENCE ACT, 1872

THE EVIDENCE ACT, 1872

(ACT NO. I OF 1872)

[15th March, 1872]

2 WHEREAS it is expedient to consolidate, define and amend the law of Evidence; It is enacted as follows:-

PART I

RELEVANCY OF FACTS

CHAPTER I

PRELIMINARY

Short title

1. This act may be called the Evidence Act, 1872.

Extent

It extends to the whole of Bangladesh and applies to all judicial proceedings in or before any Court, including Courts-martial, other than Courts-martial convened under the 3[ Army Act, 1952, the Naval Discipline Ordinance, 1961 or the Air Force Act, 1953] but not to affidavits presented to any Court or officer, nor to proceedings before an arbitrator;

Commencement of Act

And it shall come into force on the first day of September, 1872.

[Repealed]

2. [Repealed by section 2 and Schedule of the Repealing Act, 1938 (Act No. I of 1938).]

Interpretation-clause

3. In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:-

"Court" includes all Judges and Magistrates and all persons, except arbitrators, legally authorized to take evidence.

"Fact" means and includes-

(1) anything, state of things, or relation of things capable of being perceived by the senses;

(2) any mental condition of which any person is conscious.

Illustrations

(a) That there are certain objects arranged in a certain order in a certain place, is a fact.

(b) That a man heard or saw something, is a fact.

(c) That a man said certain words, is a fact.

(d) That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.

(e) That a man has a certain reputation, is a fact.

One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.

The expression "facts in issue" means and includes?any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.

Explanation.-Whenever, under the provisions of the law for the time being in force relating to Civil Procedure any Court records an issue of fact. The fact to be asserted or denied in the answer to such issue is a fact in issue.

Illustrations

A is accused of the murder of B.

At his trial the following facts may be in issue:–

that A caused B's death;

that A intended to cause B's death;

that A had received grave and sudden provocation from B;

that A, at the time of doing the act which caused B's death, was, by reason of unsoundness of mind, incapable of knowing its nature.

 

Document

"Document" means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

Illustrations

A writing is a document:

Words printed, lithographed or photographed are documents:

A map or plan is a document:

An inscription on a metal plate or stone is a document:

A caricature is a document.

Evidence

"Evidence" means and includes

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry:

such statements are called oral evidence;

(2) all documents produced for the inspection of the Court;

such documents are called documentary evidence.

Proved

A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

Disproved

A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

Not proved

A fact is said not to be proved when it is neither proved nor disproved

‘‘May presume

4. Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it:

Shall presume

Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved:

Conclusive proof

When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

CHAPTER II

OF THE RELEVANCY OF FACTS

Evidence may be given of facts in issue and relevant facts

5. Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other fact as are hereinafter declared to be relevant, and of no others.

Explanation.-This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure.

Illustrations

(a) A is tried for the murder of B by beating him with a club with the intention of causing his death.

At A's trial the following facts are in issue:–

A's beating B with the club;

A's causing B's death by such beating;

A's intention to cause B's death.

(b) A suitor does not bring with him, and have in readiness for production at the first hearing of the case, a bond on which he relies. This section does not enable him to produce the bond or prove its contents at a subsequent stage of the proceedings, otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure.

Relevancy of facts forming part of same transaction

6. Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

Illustrations

(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.

(b) A is accused of waging war against Bangladesh by taking part in an armed insurrection in which property is destroyed, troops are attacked, and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them.

(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained are relevant facts, though they do not contain the libel itself.

(d) The question is, whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact.

Facts which are the occasion cause or effect of facts in issue

7. Facts which are the occasions, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.

Illustrations

(a) The question is, whether A robbed B.

The facts that, shortly before the robbery, B went to a fair with money in his possession, and that he showed it or mentioned the fact that he had it, to third persons, are relevant.

(b) The question is, whether A murdered B.

Marks on the ground, produced by a struggle at or near the place where the murder was committed, are relevant facts.

(c) The question is, whether A poisoned B.

The state of B's health before the symptoms ascribed to poison, and habits of B, known to A, which afforded an opportunity for the administration of poison, are relevant facts.

Motive, preparation and previous or subsequent conduct

8. Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact, in issue or relevant fact, and whether it was previous subsequent thereto.

Explanation 1.–The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to effect the relevancy of statements under any other section of this Act.

Explanation 2.–When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.

Illustrations

(a) A is tried for the murder of B.

The facts that A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make his knowledge public, are relevant.

(b) A sues B upon a bond for the payment of money. B denies the making of the bond.

The fact that, at the time when the bond was alleged to be made, B required money for a particular purpose, is relevant.

(c) A is tried for the murder of B by poison.

The fact that, before the death of B, A procured poison similar to that which was administered to B, is relevant.

(d) The question is whether a certain document is the will of A.

The facts, that not long before the date of the alleged will A made inquiry into matters to which the provisions of the alleged will relate, that he consulted 4[ Advocate] in reference to making the will, and that he caused drafts of other wills to be prepared of which he did not approve, are relevant.

(e) A is accused of a crime.

The facts that, either before or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of person who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant.

(f) The question is whether A robbed B.

The facts that, after B was robbed, C said in A's presence- "the police are coming to look for the man who robbed B," and that immediately afterwards A ran away, are relevant.

(g) The question is whether A owes B Taka 10,000.

The facts that A asked C to lend him money, and that D said to C in A's presence and hearing- "I advise you not to trust A, for he owes B Taka 10,000" and that A went away without making any answer are relevant facts.

(h) The question is, whether A committed a crime.

The fact that A absconded after receiving a letter warning him that inquiry was being made for the criminal, and the contents of the letter are relevant.

(i) A is accused of a crime.

The facts that, after the commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant.

(j) The question is whether A was ravished.

The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which, the complaint was made, are relevant.

The fact that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant as a dying declaration under section 32, clause (1), or as corroborative evidence under section 157.

(k) The question is, whether A was robbed.

The fact that, soon after the alleged robbery, he made a complaint relating to the offence, the circumstances under which, and the terms in which, the complaint was made, are relevant.

The fact that he said he had been robbed without making any complaint, is not relevant, as conduct under this section, though it may be relevant as a dying declaration under section 32, clause (1), or as corroborative evidence under section 157.

Facts necessary to explain or introduce relevant facts

9. Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.

Illustrations

(a) The question is, whether a given document is the will of A.

The State of A's property and of his family at the date of the alleged will may be relevant facts.

(b) A sues B for a libel imputing disgraceful conduct to A; B affirms that the matter alleged to be libellous is true.

The position and relations of the parties at the time when the libel was published may be relevant facts as introductory to the facts in issue.

The particulars of a dispute between A and B about a matter unconnected with the alleged libel are irrelevant, though the fact that there was a dispute may be relevant if it affected the relations between A and B.

(c) A is accused of a crime.

The fact that, soon after the commission of the crime, A absconded from his house, is relevant under section 8, as conduct subsequent to and affected by facts in issue.

The fact that at the time when he left home he had sudden and urgent business at the place to which he went, is relevant, as tending to explain the fact that he left home suddenly.

The details of the business on which he left are not relevant, except in so far as they are necessary to show that the business was sudden and urgent.

(d) A sues B for inducing C to break a contract of service made by him with A. C, on leaving A's service, says to A- "I am leaving you because B has made me a better offer." This statement is a relevant fact as explanatory of C's conduct, which is relevant as a fact in issue.

(e) A, accused of theft, is seen to give the stolen property to B, who is seen to give it to A's wife. B says as he delivers it- "A says you are to hide this." B's statement is relevant as explanatory of a fact which is part of the transaction.

(f ) A is tried for a riot and is proved to have marched at the head of a mob. The cries of the mob are relevant as explanatory of the nature of the transaction.

Things said or done by conspirator in reference to common design

10. Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.

Illustrations

Reasonable ground exists for believing that A has joined in a conspiracy to wage war against Bangladesh.

The facts that B procured arms in Europe for the purpose of the conspiracy, C collected money in Chittagong for a like object, D persuaded persons to join the conspiracy in 5[ Khulna], E published writings advocating the object in view at 6[ Pabna], and F transmitted from 7[ Dhaka] to G at Cabul the money which C had collected at Chittagong, and the contents of a letter written by H giving an account

of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A's complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it.

When facts not otherwise relevant become relevant

11. Facts not otherwise relevant are relevant–

(1) If they are inconsistent with any fact in issue or relevant fact;

(2) If by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

Illustrations

(a) The question is whether A committed a crime at Chittagong on a certain day.

The fact that, on that day, A was at 8[ Dhaka] is relevant.

The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.

(b) The question is, whether A committed a crime.

The circumstances are such that the crime must have been committed either by A, B, C or D. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D, is relevant.

In suits for damages, facts tending to enable Court to determine amount are relevant

12. In suits in which damages are claimed, any fact which will enable the Court to determine the amount of damages which ought to be awarded, is relevant.

Facts relevant when right or custom is in question

13. Where the question is as to the existence of any right of custom, the following facts are relevant:–

(a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied, or which was inconsistent with its existence;

(b) particular instances in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from.

Illustration

The question is whether A has a right to a fishery. A deed conferring the fishery on A's ancestors, a mortgage of the fishery by A's father, a subsequent grant of the fishery by A's father, irreconcilable with the mortgage, particular instances in which A's father exercised the right, or in which the exercise of the right was stopped by A's neighbours, are relevant facts.

Facts showing existence of state of mind, or of body, or bodily feeling

14. Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will, or good-will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant.

Explanation 1.–A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question.

Explanation 2.–But where, upon the trial of a person accused of an offence, the previous commission by the accused of an offence is relevant within the meaning of this section, the previous conviction of such person shall also be a relevant fact.

Illustrations

(a) A is accused of receiving stolen goods knowing them to be stolen. It is proved that he was in possession of a particular stolen article.

The fact that, at the same time, he was in possession of many other stolen articles is relevant, as tending to show that he knew each and all of the articles of which he was in possession to be stolen.

(b) A is accused of fraudulently delivering to another person a counterfeit coin which, at the time when he delivered it, he knew to be counterfeit.

The fact that, at the time of its delivery, A was possessed of a number of other pieces of counterfeit coin is relevant.

The fact that A had been previously convicted of delivering to another person as genuine a counterfeit coin knowing it to be counterfeit is relevant.

(c) A sues B for damage done by a dog of B's, which B knew to be ferocious.

The facts that the dog had previously bitten X, Y and Z, and that they had made complaints to B, are relevant.

(d) The question is, whether A, the acceptor of a bill of exchange, knew that the name of the payee was fictitious.

The fact that A had accepted other bills drawn in the same manner before they could have been transmitted to him by the payee if the payee had been a real person, is relevant as showing that A knew that the payee was a fictitious person.

(e) A is accused of defaming B by publishing an imputation intended to harm the reputation of B.

The fact of previous publications by A respecting B, showing ill-will on the part of A towards B is relevant, as proving A's intention to harm B's reputation by the particular publication in question.

The facts that there was no previous quarrel between A and B, and that A repeated the matter complained of as he heard it, are relevant, as showing that A did not intend to harm the reputation of B.

(f) A is sued by B for fraudulently representing to B that C was solvent, whereby B, being induced to trust C, who was insolvent, suffered loss.

The fact that at the time when A represented C to be solvent, C was supposed to be solvent by his neighbours and by persons dealing with him, is relevant, as showing that A made the representation in good faith.

(g) A is sued by B for the price of work done by B, upon a house of which A is owner, by the order of C, a contractor.

A's defence is that B's contract was with C.

The fact that A paid C for the work in question is relevant, as proving that A did, in good faith, make over to C the management of the work in question, so that C was in a position to contract with B on C's own account, and not as agent for A.

(h) A is accused of the dishonest misappropriation of property which he had found, and the question is whether, when he appropriated it, he believed in good faith that the real owner could not be found.

The fact that public notice of the loss of the property had been given in the place where A was, is relevant, as showing that A did not in good faith believe that the real owner of the property could not be found.

The fact that A knew, or had reason to believe, that the notice was given fraudulently by C, who had heard of the loss of the property and wished to set up a false claim to it, is relevant, as showing that the fact that A knew of the notice did not disprove A's good faith.

(i) A is charged with shooting at B with intent to kill him. In order to show A's intent the fact of A's having previously shot at B may be proved.

(j) A is charged with sending threatening letters to B. Threatening letters previously sent by A to B may be proved, as showing the intention of the letters.

(k) The question is, whether A has been guilty of cruelty towards B, his wife.

Expressions of their feeling towards each other shortly before or after the alleged cruelty are relevant facts.

(l) The question is, whether A's death was caused by poison.

Statements made by A during his illness as to his symptoms are relevant facts.

(m) The question is, what was the state of A's health at the time an assurance on his life was effected.

Statements made by A as to the state of his health at or near the time in question are relevant facts.

(n) A sues B for negligence in providing him with a carriage for hire not reasonably fit for use, whereby A was injured.

The fact that B's attention was drawn on other occasions to the defect of that particular carriage is relevant.

The fact that B was habitually negligent about the carriages which he let to hire is irrelevant.

(o) A is tried for the murder of B by intentionally shooting him dead.

The fact that A on other occasions shot at B is relevant as showing his intention to shoot B.

The fact that A was in the habit of shooting at people with intent to murder them is irrelevant.

(p) A is tried for a crime.

The fact that he said something indicating an intention to commit that particular crime is irrelevant.

The fact that he said something indicating a general disposition to commit crimes of that class is irrelevant.

Facts bearing on question whether act was accidental or intentional

15. When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant.

Illustrations

(a) A is accused of burning down his house in order to obtain money for which it is insured.

The facts that A lived in several houses successively each of which he insured, in each of which a fire occurred, and after each of which fires A received payment from a different insurance office, are relevant, as tending to show that the fires were not accidental.

(b) A is, employed to receive money from the debtors of B. It is A's duty to make entries in a book showing the amounts received by him. He makes an entry showing that on a particular occasion he received less than he really did receive.

The question is, whether this false entry was accidental or intentional.

The facts that other entries made by A in the same book are false, and that the false entry is in each case in favour of A, are relevant.

(c) A is accused of fraudulently delivering to B a counterfeit Taka.

The question is, whether the delivery of the Taka was accidental.

The facts that, soon before or soon after the delivery to B, A delivered counterfeit Taka to C, D and E are relevant, as showing that the delivery to B was not accidental.

Existence of course of business when relevant

16. When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact.

Illustrations

(a) The question is, whether a particular letter was dispatched.

The facts that it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that that particular letter was put in that place are relevant.

(b) The question is, whether particular letter reached A.

The facts that it was posted in due course, and was not returned through the Dead Letter office, are relevant.

ADMISSIONS

Admission defined

17. An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.

Admission –by party to proceeding or his agent;

18. Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to make them, are admissions.

by suit or in representative character;

Statements made by parties to suits suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character.

by party interested in subject-matter;

Statements made by–

(1) persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who make the statement in their character of persons so interested, or

by person from whom interest derived

(2) persons from whom the parties to the suit have derived their interest in the subject-matter of the suit,

are admissions, if they are made during the continuance of the interest of the persons making the statements.

Admissions by persons whose position must be proved as against party to suit

19. Statements made by persons whose position or liability it is necessary to prove as against any party to the suit, are admissions, if such statements would be relevant as against such persons in relation to such position or liability in a suit brought by or against them, and if they are made whilst the person making them occupies such position or is subject to such liability.

Illustrations

A undertakes to collect rents for B.

B sues A for not collecting rent due from C to B.

A denies that rent was due from C to B.

A statement by C that he owed B rent is an admission, and is a relevant fact as against A, if A denies that C did owe rent to B.

Admissions by persons expressly referred to by party to suit

20. Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions.

Illustrations

The question is whether a horse sold by A to B is sound.

A says to B–"Go and ask C; C knows all about it." C's statement is an admission.

Proof of admissions, against persons making them, and by or on their behalf

21. Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they can not be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases:–

(1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section 32.

(2) An admission may be proved by or on behalf of the person making it, when it consists of statement of the

existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is a accompanied by conduct rendering its falsehood improbable.

(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.

Illustrations

(a) The question between A and B is, whether a certain deed is or is not forged. A affirms that it is genuine, B that it is forged.

A may prove a statement by B that the deed is genuine, and B may prove a statement by A that the deed is forged; but A cannot prove a statement by himself that the deed is genuine, nor can B prove a statement by himself that the deed is forged.

(b) A, the captain of a ship, is tried for casting her away.

Evidence is given to show that the ship was taken out of her proper course.

A produces a book kept by him in the ordinary course of his business showing observations alleged to have been taken by him from day to day, and indicating that the ship was not taken out of her proper course. A may prove these statements, because they would be admissible between third parties, if he were dead, under section 32, clause (2).

(c) A is accused of a crime committed by him at Chittagong.

He produces a letter written by himself and dated at 9[ Dhaka] on that day and bearing the 10[ Dhaka] post-mark of that day.

The statement in the date of the letter is admissible, because, if A were dead it would be admissible under section 32, clause (2).

(d) A is accused of receiving stolen goods knowing them to be stolen.

He offers to prove that he refused to sell them below their value.

A may prove these statements, though they are admissions, because they are explanatory of conduct influenced by facts in issue.

(e) A is accused of fraudulently having in his possession counterfeit coin which he knew to be counterfeit.

He offers to prove that he asked a skilful person to examine the coin as he doubted whether it was counterfeit or not, and that that person did examine it and told him it was genuine.

A may prove these facts for the reasons stated in the last preceding illustration.

When oral admissions as to contents of documents are relevant

22. Oral admissions as to the contents of a document are not relevant, unless and until that the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.

Admissions in civil cases when relevant

23. In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given.

Explanation.–Nothing in this section shall be taken to exempt any 11[ Advocate] from giving evidence of any matter of which he may be compelled to give evidence under section 126.

Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding

24. A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

Confession to police-officer not to be proved

25. No confession made to a police-officer shall be proved as against a person accused of any offence.

Confession by accused while in custody of police not to be proved against him

26. No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

Explanation.– In this section "Magistrate" does not include the head of a village discharging magisterial functions unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 12[ 1898].

How much of information received from accused may be proved

27. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

Confession made after removal of impression caused by inducement, threat or promise, relevant

28. If such a confession as is referred to in section 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the Court, been fully removed, it is relevant.

Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc

29. If such a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practised on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to make such confession, and that evidence of it might be given against him.

Consideration of proved confession affecting person making it and others jointly under trial for same offence

30. When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other persons as well as against the person who makes such confession.

Explanation.-"Offence", as used in this section, includes the abatement of, or attempt to commit, the offence.

Illustrations

(a) A and B are jointly tried for the murder of C. It is proved that A said-"B and I murdered C." The Court may consider the effect of this confession as against B.

(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said- "A and I murdered C".

This statement may not be taken into consideration by the Court against A, as B is not being jointly tried.

Admissions not conclusive proof, but may be stop

31. Admissions are not conclusive proof of the matters admitted but they may operate as estoppels under the provisions hereinafter contained.

STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES

Cases in which statement of relevant fact by person who is dead or cannot be found, etc, is relevant

32. Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:–

When it relates to cause of death;

(1) When the statement is made by person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

or is made in course of business;

(2) When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledge-ment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him.

or against interest of maker;

(3) When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.

or gives opinion as to public right or custom, or matters of general interest;

(4) When the statement gives the opinion of any such person as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter has arisen.

or relates to existence of relationship;

(5) When the statement relates to the existence of any relationship by blood, marriage or adoption between person as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.

or is made in will or deed relating to family affairs;

(6) When the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.

or in document relating to transaction mentioned in section 13, clause (a);

(7) When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a).

or is made by several persons, and expresses feelings relevant to matter in question

(8) When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.

Illustrations

(a) The question is, whether A was murdered by B; or

A dies of injuries received in a transaction in the course of which she was ravished. The question is whether she was ravished by B; or

The question is whether A was killed by B under such circumstances that a suit would lie against B by A's widow.

Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration are relevant facts.

(b) The question is as to the date of A's birth.

An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that, on a given day he attended A's mother and delivered her of a son, is a relevant fact.

(c) The question is, whether A was in Chittagong on a given day.

A statement in the diary of a deceased solicitor, regularly kept in the course of business, that on a given day the solicitor attended A at a place mentioned, in 13[ Chittagong], for the purpose of conferring with him upon specified business, is a relevant fact.

(d) The question is, whether a ship sailed from 14[ Chittagong] harbour on a given day.

A letter written by a deceased member of a merchant's firm by which she was chartered to their correspondents in London, to whom the cargo was consigned, stating that the ship sailed on a given day from 15[ Chittagong] harbour, is a relevant fact.

(e) The question is, whether rent was paid to A for certain land.

A letter from A's deceased agent to A saying that he had received the rent on A's account and held it at A's orders, is a relevant fact.

(f) The question is, whether A and B were legally married.

The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime, is relevant.

(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day is relevant.

(h) The question is, what was the cause of the wreck of a ship.

A protest made by the Captain, whose attendance cannot be procured, is a relevant fact.

(i) The question is, whether a given road is a public way.

A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.

(j) The question is, what was the price of grain on a certain day in a particular market. A statement of the price, made by a deceased banya in the ordinary course of his business, is a relevant fact.

(k) The question is, whether A, who is dead, was the father of B.

A statement by A that B was his son, is a relevant fact.

(l) The question is, what was the date of the birth of A.

A letter from A's deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.

(m) The question is, whether, and when, A and B were married.

An entry in a memorandum-book by C, the deceased father of B, of his daughter's marriage with A on a given date, is a relevant fact.

(n) A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libellous character. The remarks of a crowd of spectators on these points may be proved.

Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated

33. Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:

Provided-

that the proceeding was between the same parties or their representatives in interest;

that the adverse party in the first proceeding had the right and opportunity to cross-examine;

that the questions in issue were substantially the same in the first as in the second proceeding.

Explanation.–A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES

Entries in books of account when relevant

34. Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.

Illustration

A sues B for Taka 1,000, and shows entries in his account books showing B to be indebted to him to this amount. The entries are relevant, but are not sufficient, without other evidence, to prove the debt.

Relevancy of entry in public record, made in performance of duty

35. An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.

Relevancy of statements in maps, charts and plans

36. Statements of facts in issue or relevant facts, made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of the Government, as to matters usually represented or stated in such maps, charts or plans, are themselves relevant facts.

Relevancy of statement as to fact of public nature contained in certain Acts or notifications

37. When the Court has to form an opinion as to the existence of any fact of a public nature, any statement of it, made in a recital contained in any Act of Parliament of the United Kingdom, or in any 16[ Act of Parliament] or in a Government notification 17[ * * *] is a relevant fact.

Relevancy of statements as to any law contained in law-books

38. When the Court has to form an opinion as to a law of any country, any statement of such law contained in a book purporting to be printed or published under the authority of the Government of such country and to contain any such law, and any report of a ruling of the Courts of such country contained in a book purporting to be a report of such rulings, is relevant.

HOW MUCH OF A STATEMENT IS TO BE PROVED

What evidence to be given when statement forms part of a conversation, document, book or series of letters or papers

39. When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a document which forms part of a book, or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, book of series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.

JUDGMENTS OF COURTS OF JUSTICE WHEN RELEVANT

Previous judgments relevant to bar a second suit or trial

40. The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial.

Relevancy of certain judgments in probate, etc, jurisdiction

41. A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.

Such judgment, order or decree is conclusive proof-

that any legal character which it confers accrued at the time when such judgment, order or decree come into operation;

that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person;

that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease;

and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.

Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41

42. Judgments, orders or decrees other than those mentioned in section 41 are relevant if they relate to matters of a public nature relevant to the inquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.

Illustration

A sues B for trespass on his land. B alleges the existence of a public right of way over the land, which A denies.

The existence of a decree in favour of the defendant, in a suit by A against C for a trespass on the same land, in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of way exists.

Judgments, etc, other than those mentioned in sections 40 to 42, when relevant

43. Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Act.

Illustrations

(a) A and B separately sue C for a libel which reflects upon each of them. C in each case says that the matter alleged to be libellous is true, and the circumstances are such that it is probably true in each case, or in neither.

A obtains a decree against C for damages on the ground that C failed to make out his justification. The fact is irrelevant as between B and C.

(b) A prosecutes B for adultery with C, A's wife.

B denies that C is A's wife, but the Court convicts B of adultery.

Afterwards, C is prosecuted for bigamy in marrying B during A's lifetime. C says that she never was A's wife.

The judgment against B is irrelevant as against C.

(c) A prosecutes B for stealing a cow from him. B is convicted.

A afterwards sues C for the cow, which B had sold to him before his conviction. As between A and C, the judgment against B is irrelevant.

(d) A has obtained a decree for the possession of land against B. C, B's son, murders A in consequence.

The existence of the judgment is relevant, as showing motive for a crime.

(e) A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue.

(f) A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under section 8

753

Town Improvement Act, 1953

Citation: 13 BLC 793

Case Year: 1953

Subject: Town Improvement

Delivery Date: 2018-07-05

Town Improvement Act, 1953

[XIII of 1953]

 

Sections 38 & 40

 

Section 40 of the Town Improvement Act, 1953 provides for certain matters to be provided for an improvement scheme. Improvement Schemes and Rehousing schemes have been provided in section 38 of Chapter-Ill of the Town Improvement Act. But no where in the Act there is any provision authorising the respondents to abolish the open spaces. However, alteration can be made keeping the open space intact, only for the improvement of the Schemes. Civic facilities such as open spaces, park, play field, road, mosque, primary school, etc. are recognised in any township and they cannot be abolished or done away with. It will be a denial of their civic right and it will be threat to the environment. The respondent No. 1 is not authorised to curtail or destroy open spaces for common use of the allottees.

 

Dr AKM Shamsul Islam vs Rajdhani Unnayan Kartri-pakkha U BLC 330.

 

Section 93(c)

 

The vendor of plaintiff and, thereafter, plaintiff remained in posses­sion for more than 30 years have been con­cluded by concurrent finding of fact. True it is that Gazette Notification had been made on 12-12-1987 but in the absence of service of notices upon the owner vendor PW 2 as mandated under section 93A of The Town Improvement Act, 1953 and, also, in absence of any evidence of taking actual possession over suit property, Gazette Notification dated 12-12-1987 has got no legal basis and validity and also binding force and the same can be characterised to be a paper published in colourful exercise of power. In the case in hand no payment of compen­sation had been made not to speak of whether it was within one year or more than one year. The decisions of Trial Judge and Appellate Judge are concluded by concurrent decisions of fact warranting no interference by the High Court Division in the exercise of Revisional Jurisdiction under section 115 of the Code.

 

Rajdhani Unnayan Kartripakha vs Abdul Zakir 13 BLC 793.

754

Trade Mark Act, 1940

Citation: 12 BLC 469, 11 BLC 438, 17 BLC 715, 11 BLC 438, 17 BLC 715, 17 BLC 730, 16 BLC 712, 13 BLC 256, 12 BLC 456, 12 BLC 469,

Case Year: 1940

Subject: Trade Mark

Delivery Date: 2018-07-05

Trade Mark Act, 1940

[V of 1940]

 

Sections 3 and 80

 

As per section 3 of the Trade Marks Act, 1940, the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Sub-rule (1) of rule 4 of Order III of the Code of Civil Procedure has clearly referred to pleader and court and pleader definitely does not include a trade marks agent therefore, the bar of the said provision of law cannot be invoked in debarring a trade marks agent from repre­senting a person to file TM-55.

 

General Biscuits Belgie, Belgium vs Prince Hotel Bakery & Food Products (Statutory) 12 BLC 469.

 

Sections 6, 8, 10, 15, 46 and 76

 

Section 76 does not control section 46 or vice versa. They are independent of each other. It is the choice of the aggrieved party which of the two remedies he will avail. On this score also the principle of res judicata is not attracted in the instant case. To an aggrieved party two alternate remedies are available against the decision of the Registrar. In the event of rejection of an opposition he can file an appeal under section 76 of the Act to the High Court Division or in the alternative can file a rectification case under section 46 of the Act. The remedies are parallel to each other. If the contention of Mr Hussain is accepted then the provisions as contained in section 46 of the Act becomes meaningless, superfluous, redundant and unnecessary to those who are parties in opposition as they will have no other avenue available to them except filing an appeal. But a study of the scheme of the Act does not show that a party to the opposition cannot file rectification case instead of preferring an appeal. No such restriction is there in the Act itself. This argument is wholly untenable because when a court considers a constitutional or statutory provision there can be no estoppel against a statute.

 

Rahimuddin Mia (Bharasa) (Md) vs Registrar of Trade Marks 11 BLC 438.

 

Section 8

 

Section 8 of the Act imposes prohibition of registration of certain mattes and provides that no "Trade Mark " nor part of a trade mark shall be registered which consists of or contains, any scandalous as designed, or any matter the use of which would by reason of its being likely to deceive or to cause confusion or otherwise, be disentitled to protection in a Court of justice.

 

Wellcome Ltd vs Incepta Pharma Ltd 17 BLC 715.

 

Sections 8(a), 24

 

From the materials on record it is crystal clear that the opposite-party No. 2 practicing a fraud upon the opposite-party No. 1 obtained the registra­tion of his mark which is identical to the previously registered mark of the petitioner. In the present case the admitted position is that the petitioner is the prior registered owner of the mark and the opposite-party No. 2 has imitated his mark in toto including the bust of the son of the petitioner. The instant application is maintainable in its present form and manner and it rests on a distinct and separate cause of action which arose only after the registration of the impugned mark and this comes within the ambit of section 46 of the Act. It appears that the opposite-party No. 1 has registered the impugned mark without sufficient reasons and the mark is remaining wrongly in the Register of the opposite-party No. 1.

 

Rahimuddin Mia (Bharasa) (Md) vs Registrar of Trade Marks 11 BLC 438.

 

Section 10—Passing off—

 

If there is a similarity between the two names which is likely to create confusion in the minds of the public that while they are doing business with the plaintiff, they are in fact doing the business with the other, then this comes within the ambit of passing off.

 

Wellcome Ltd vs Incepta Pharma Ltd 17 BLC 715

 

Section 14(1)

 

The show cause notice as served upon the petitioner appears to have been served without any lawful basis. There is no conflict in between these two Trade Name nor the public at large will be confused by the two Trade Names if both the products with their respective Trade Name appears in the self of the market shops. "PRAN FROOTO" having a good reputation in the country has its own distinctive mark and the reputation and the registered Trade mark "FROOTI", being completely dissimilar with the petitioners Trade Name "PRAN FROOTO" will not confuse or mislead the customers at large in Bangladesh in purchasing the said product, if available within the Bangladeshi market. The show cause notice as served upon the petitioner on the petitioner on 21-12-2011 under the Provisions of section 14(1) of the Trade mark Act 1940 is hereby declared to have been issued without lawful basis.

 

mjad Khan vs Park Agro Products Ltd. 17 BLC 730.

 

Sections 20(2) and 73

 

As the plaintiff did not acquire any proprietary right in the matter by virtue of registration of the Trade Mark at the time of instituting the suit, plaintiff rightly filed the suit in the Court of Assistant Judge for passing off action at the time Trade Mark not being registered under the said Act the question of going to District Judge did not arise and the suit was rightly instituted in the court of Assistant Judge.

 

Liberty Foods Company Ltd vs Bombay Sweets and Co Ltd. 16 BLC 712.

 

Section 21

 

Principles emerged from Judicial Authorities manifestly demonstrate that one who had got registration and used the Trade Mark first is entitled to claim proprietorship and, also, got the right to use Trade Mark and use of the said Trade Mark by another which is likely to deceive or cause confusion in the minds of the customers cannot be allowed and the person or company in whose favour a Trade Mark was registered earlier is to be protected with the arms of law, one arm of law being injunction and a person/ company is to be graced with an order of injunction.

 

Canon Kabushiki Kaisha vs Canon Electronics Industries Ltd 13 BLC 256.

 

Section 70(c)

 

Admittedly, the Registrar did not comply with the mandatory provisions of section 70(c) of the Trade Marks Act and he, having not complied therewith, illegally and erroneously rejected the Opposi­tion Case No. 1543 of 2000 and accepted the application of the applicant-respondent No. 1 for registration of the trade-mark SONYO. The entire exercise undertaken by the Registrar of Trade Marks appears to be 'de hors' the law. Against this backdrop, the impugned order is liable to be struck down.

 

Sony Kabushika Kaisha vs Sanyo Industrial Co Pvt Ltd 12 BLC 456.

 

Section 70(c)

 

It appears that the Registrar of Trade Marks on the very first day refused the appellant's prayer for time to file the notice of opposition and then without fixing the case for hearing as provided in section 70(c) of the Act of 1940 and Rule 38 of the Revised Rules, 1963 passed the impugned order giving direction for registration of the trade mark. The Registrar of Trade Marks committed error of law in passing the impugned order directing registration of the trade mark in favour of the applicant-respondent No. 1 after rejecting the prayer for time vide TM-55 and, as such, the same must be set-aside.

 

General Biscuits Belgie, Belgium vs Prince Hotel Bakery & Food Products (Statutory) 12 BLC 469.

 

Section 80

 

From a reading of section 80 of the Act, 1984 it appears that a person can be represented by a trade marks agent to do any act by or under the said Act, which is required to be done by such persons other than making of an affidavit and therefore, praying for a time to file notice of opposition before the Registrar of Trade Marks by the trade marks agent is clearly permissible. The only embargo put by the said section is that trade marks agent must be registered in the prescribed manner. From the impugned order it does not appear that the application under TM-55 was rejected on the ground of absence of any proper authorisation to the trade marks agent or that the trade marks agent who filed TM-55 was not a duly registered one.

 

General Biscuits Belgie, Belgium vs Prince Hotel Bakery & Food Products 12 BLC 469.

 

755

Trade Mark (Revised) Rules, 1963

Citation: 11 BLC 438, 12 BLC 469

Case Year: 1963

Subject: Trade Mark (Revised)

Delivery Date: 2018-07-05

Trade Mark (Revised) Rules, 1963

 

Rule 23

 

On a scrutiny of the scheme of the Act and the provisions of the Act it appears that the Parliament consciously incorporated the provisions of sections 15 and 46 to serve different purposes. It must be remembered that the Act has been passed by the Parliament to protect and safeguard the interest of the consumers, i.e., the consumers' interest is paramount. On examination of both the aforesaid sections it appears that the provisions of section 15 offered an oppor­tunity to the whole world to raise objection as to the registrability of a mark under the Act. Besides, some legal obligation is also imposed upon the Registrar under rule 23 of the Revised Trade Marks Rules, 1963. All these relates to steps to be taken before registration of a mark. The scope under section 15 is much wider than under section 46 of the Act. But under section 46 it is only the aggrieved person who can move the Tribunal and that too on a limited ground. Thus, it is crystal clear that the cause of action in opposition is different from the cause of action for rectification.

 

Rahimuddin Mia (Bharasa) (Md) vs Registrar of Trade Marks 11 BLC 438.

 

Rule 38

 

It appears that the Registrar of Trade Marks on the very first day refused the appellant's prayer for time to file the notice of opposition and then without fixing the case for hearing as provided in section 70(c) of the Act of 1940 and Rule 38 of the Revised Rules, 1963 passed the impugned order giving direction for registration of the trade mark. The Registrar of Trade Marks committed error of law in passing the impugned order directing registration of the trade mark in favour of the applicant-respondent No. 1 after rejecting the prayer for time vide TM-55 and, as such, the same must be set-aside.

 

General Biscuits Belgie, Belgium vs Prince Hotel Bakery & Food Products 12 BLC 469.

756

Trade Marks Rules, 1963

Citation: 13 BLC 256

Case Year: 1963

Subject: Trade Marks

Delivery Date: 2018-07-05

Trade Marks Rules, 1963

 

Fourth Schedule—Class 9

 

Petition presented by defendant-respondent for registration of Trade Mark in Class 9 manifests that Television, VCD and Two-in-one had been subject matters of registration. It has, thus, been admitted by defendant-respondent that Television is, also, included in Class 9 under Fourth Schedule of Trade Mark Rules. Since Trade Mark "CANON" in favour of plaintiff-appellant is registered in Class 9, Television, thus, stood included in Class 9. It does not lie in the mouth of defendant-respondent that Television is not registered in Class 9 under Fourth Schedule of Trade Mark Rules, 1963 in favour of plaintiff-appellant.

 

Canon Kabushiki Kaisha vs Canon Electronics Industries Ltd 13 BLC 256.

757

Trade Organisation Ordinance, 1961

Citation: 12 BLC 557

Case Year: 1961

Subject: Trade Organisation

Delivery Date: 2018-07-05

Trade Organisation Ordinance, 1961

[XLV of 1961]

 

Section 3

 

The application filed by the present petitioner is pending before respon­dent No. 6, whereas the application filed by the respondent No. 7 is lying with res­pondent No. 1 for disposal. As per the Ordi­nance, respondent No. 6 is the competent authority for taking a decision in granting Trade Organisation Licence in favour of any Organisation. It would be fair if both the applications are placed before respondent No. 6 along with all relevant documents and reports for his perusal and decision in accordance with law.

 

In the result, the Rule is disposed of with the above observation. The respondent No. 6 is directed to dispose of the matter relating to Trade Organisation Licence of the present petitioner and respondent No. 7 within a period of 2(two) months from the date of receipt of this judgment and order.

 

Nurul Islam vs Bangladesh 12 BLC 557.

758

Trade Organisation Rule, 1994

Citation: 15 BLC 232

Case Year: 1994

Subject: Trade Organisation

Delivery Date: 2018-07-05

Trade Organisation Rule, 1994

 

Rule 15(2)

 

Since the subject matter of the Rule had already been challenged before a civil Court by one of the members of the chamber and that matter was ended with the dismissal of the suit, the said judgment and order of dismissal will operate as res judicata against the instant Rule. It further appears that a schedule of election was published (Annexure-C to the Writ Petition). Whether the notice was served upon the members under Rule 15(2) of the Trade Organisation Rule, 1994 is a question of fact and that cannot be decided by this Court in writ jurisdiction. It is too late to raise the question before this Court.

 

Anwar Sadat Sarker vs Secretary, Ministry of Commerce 15 BLC 232.

759

Transfer of Property Act, 1882

Citation: 17 BLC 674, 16 BLC (AD) 46, 16 BLC 542, 13 BLC 208, 13 BLC 247, 11 BLC 714, 11 BLC 280, 11 BLC (AD) 195, 11 BLC 280, 14 BLC 339, 17 BLC 593, 15 BLC 607, 14 BLC (AD) 109, 14 BLC 210, 14 BLC 339, 14 BLC 360, 17 BLC 495, 12 BLC 705, 13 BLC 18, 17 BLC 226, 1

Case Year: 1882

Subject: Transfer of Property

Delivery Date: 2018-07-07

Transfer of Property Act, 1882

[IV of 1882]

 

Section 2(6) and 3(3)

 

Complete usufructuary mortgage means of transfer by a tenant of the right of possession in any land for the advanced or to be advanced by way of loan upon the condition that the loan with all interests thereon shall be deemed to be extinguished by the profits arising from the land during the period of Mortgage. Thereby all the raiyat were protected and relieved from all sqrts of mortgages except the "complete usufructuary mortgage".

 

Budhi-mante Base vs Ajnachamn Biswas 17 BLC 674.

 

Sections 44 and 47

 

Section 47 of the Transfer of Property Act applies when owners who hold estate as tenants in common transfer a part of the estate; the share of each co-owner is proportionately reduced equally. If the shares are unequal there is a greater reduction in the greater share, and a lesser reduction in the lesser share.

 

Zafela Begum vs Atikulla 16 BLC (AD) 46.

 

Section 52

 

The cause of action of the suits being all together different the principle of section 52 of the Transfer of Property Act has no manner of application inasmuch as in the earlier suits right to immovable property was not directly and specifically in question whereas in the present suit right to immovable property is directly and specifically in question.

 

Mohiuddin Khan vs Shihamul Haque 15 BLC (AD) 129.

 

Section 53A

 

The dispute can be summarized as in specific performance of contract the genuineness of the contract is the foremost consideration but under 53A of Transfer of property Act the Court is to find title of the parties.

 

Sultan Miah vs Roksana Begum 16 BLC 542.

 

Section 52

 

The suit of the plaintiffs is hit by section 52 of the Transfer of Property Act as they purchased the alleged suit land during the pendency of the proceedings and the decisions upon the predecessors of the plaintiffs are binding upon the plaintiff. Against such order no suit lies except on the grounds of fraud and collusion but no suit was filed by the predecessor of the plaintiffs. The plaintiffs having no title and possession in the suit land have no locus standi to bring the suit against the order or the proceedings in which they were not parties.

 

Abdul Aziz vs Kabir Ahmed Patwary 13 BLC 208.

 

Section 53A

 

The petitioners have been in continuous possession of the case property on the basis of the agreement for sale dated 27-12-1970 and, as such, they have the protection of the provisions of section 53A of the Transfer of Property Act.

 

Mahmuda Begum vs Chairman, First Court of Settlement 13 BLC 247.

 

Section 53

 

The defendants-respondents obtained the ex parte decree in Title Suit No. 329 of 1974 suppressing summons collusively and practising fraud upon the Court. Again, the defendants-respondents manufacturing some false and concocted amalnama dhakhi-las and khatians tried to validate the evil design of grabbing huge quantum of the forest khas land practising fraud upon the Court and their evil design has been revealed in the appeal. The essence of law being to advance the cause of justice and not to frustrate it. If fraud is allowed to be perpe­trated and perpetuated the sanctity attached to law will wither away with disastrous consequences to the society. The case of the defendants-respondents is the glaring example of committing fraud upon the Court which cannot be encouraged.

 

Bangladesh vs Serajul Haque 11 BLC 714.

 

Section 53A

 

The signature given by the defendant No.l, Inge Flatz, in the lease deed and her signature in the power of attorney clearly appear to be same by the naked eye. RAJUK also accepted this power of attorney through a letter dated 20-7-1989 marked Exhibit 7 permitting Mohsin Darbar to do all acts on the basis of the power of attorney. Thus, it is clear that the power of attorney was actually given by Mrs Inge Flatz to Mohsin Darbar empowering the latter to sell the suit property and being empowered, her constituted attorney executed the deed of agreement for the sale of the suit property in favour of the plaintiff. The deed of agreement for sale is genuine and on the basis of this agreement, the plaintiff made part payment and got possession of the suit property.

 

M Manzur Ahmed vs Inge Flatz 11 BLC 280.

 

Section 53

 

Had the transactions been the product of fraud, coercion or undue influence or had the transactions been not the product of Rativan's free will and that had the Heba-bil-ewaz deeds been not executed and registered by her without understanding the nature of the transaction and of being unaware of the contents of the documents, Rativan Bibi would, in the normal course of conduct and behaviour, have taken exception to both the transactions instead of that she is taking exception only in respect of one transaction i.e. the transaction which was made in favour of the defendant, and this shows lack of bonafide on her part and that she being influenced by some other interested persons, as contended by the defendant by the sons of Amzad, one of the sons of Rativan Bibi, instituted the suit.

 

Mustafizur Rahman vs Md Amjad Hossain 11 BLC (AD) 195.

 

Section 53A

 

In the instant case, it has been clearly proved that Mrs Inge Flatz empowered Mohsin Darbar by virtue of a power of attorney to sell the suit property and Mohsin Darbar accordingly executed the agreement for sale in respect of the suit property and made part payment of consi­deration money and delivered possession of the suit property and thus, the part performance of agreement has been proved.

 

M Manzur Ahmed vs Inge Flatz 11 BLC 280.

 

Section 54

 

Section 54 of Transfer of Property Act can be pressed into service in this regard which enjoins that a contract for sale of immovable property is a contract that a sale of such property shall take place on terms settled between parties and it does not, of itself, create any interest in or charge on such property. Anwarul Huq could not become owner of suit shop/premises on the strength of alleged agreement for sale entered between him and Abu Md Shah Newaz and there could not be any legal justification to pay rent to Anwarul Huq and payment of rent to Anwarul Huq by defendant-opposite-party as owner of suit shop/premises is no payment of rent in eye of law.

 

Amina Begum BA B.Ed vs Mdjobayer Alam Barker 14 BLC 339.

 

Section 58(C)

 

Section 95A of the SAT Act it is clear that the transfer deed executed on 23-3-1967 is a mortgage deed. Though it is found that Section 58(C) of the TP Act does not mention the same but ultimately Section 95A clearly provides that mortgage is applicable in all the holdings including house or building or any portion or share.

 

Abdur Razzak Khandker vs Maleka Khatun 17 BLC 593.

 

Section 58(f)

 

Section 58(f) of the Transfer for Property Act was amended with effect from 26 March, 1971 by the Bangladesh Law (Revision and Declaration Act, 1973 and in section 58(f), the towns of Dhaka, Nara-yanganj and Chittagong have been added. The position stands now is that the provision for equitable mortgage by depositing title deeds had been made applicable at Dhaka and Narayanganj with effect from March, 1971 and before that date there was no provision of equitable mortgage by deposit of title deeds. The transaction between the plaintiff and the defendant No.l was entered in 1968, when there was no provision for creating equitable mortgage of lands in Dhaka district. On looking at this provision, Mr Rahim finds it difficult to seek a decree in respect of prayer 'Ga' to the plaint.

 

Agrani Bank Ltd vs Habib Oil Mills (Bangladesh) Ltd 15 BLC 607.

 

Section 106

 

The learned Judges of the High Court Division made the Rule absolute on discussion and proper consideration of the facts and law involved in the case holding that a registered deed of lease of immovable property for 99 years could only be deter­mined by service of a notice under section 106 of the Transfer of Property Act, 1882 and such a lease deed cannot be cancelled in part and that partial cancellation of the lease deed by the respondent No.7 for non-construction of any building in the portion of the petitioner's land is not justified and warranted either by the lease deed or by law.

 

Dr MA Yahia vs Md Abdul Quader 14 BLC (AD) 109.

 

Section 106

 

The petitioner himself made agreement with respondent No. 4, not with the Upazila Parishad (Annexure-E to the writ petition) and the provisions of section 106 of the Transfer of Property Act are not applicable in the instant case.

 

Jitendra Nath Bhadra vs Bangladesh 14 BLC 210.

 

Section 106

 

Defendant-opposite-party in spite of clear knowledge of deed of exchange, and, also, of getting of suit shop/ premises in saham of Abu Md Shah Newaz and, also, of the deed of conveyance executed and registered on 26-11-2000 by Abu Md Shah Newaz in favour of plaintiffs-petitioners and, also, in spite of receipt of Attornment Notice, Exhibit 11 and Notice under section 106 of Transfer of Property Act did neither attorn nor admit plaintiffs-petitioners as owner and landlord of suit shop-premises and did not pay rent to them and, thus, became habitual defaulter rendering him liable to be evicted from suit shop/premises.

 

Amina Begum BA B.Ed vs Md Jobayer Alam Barker 14 BLC 339.

 

Section 106—

 

In this case there was due service of notice under section 106 of the Transfer of Property Act inasmuch as in the present case it appears from the materials on record on several occasions the notice under section 106 of the Transfer of Property Act was posted in the address of the suit-shop to the defendant-opposite-party but all the times the same was returned as undelivered.

 

Khandaker Mahmud Hasan vs Amirul Islam 14 BLC 360.

 

Section 107

 

Both the court below totally misread and misconstrue the patta Exhibit 14 and failed to consider that the patta is not original one but a certified copy and it was not produced from proper custody as such, it has got no evidentiary value in the eye of law. The patta in question has wrongly accepted as evidence without any proof of its execution.

 

Gour Chandra Mohanto Babu vs Md Abu Bakar Siddique 17 BLC 495.

 

Section 107

 

The rule of law is that the landlord or his authorised agent has to come to the Court to prove the 7 exhibited rent receipts, of the plaintiffs when PW 1 has admitted that there is no patta or registered deed in support of plaintiffs' predecessor's settlement, he was not present at the time of settlement nor has he any knowledge of such settlement. PW 2 has admitted in his deposition that at the time of writing dakhi-las he was not present and such dakhilas were written by Salam and Avinish, the Tahashilders under original landlord. There is no document to prove that Salam and Avinish were the Tahashilders under the original landlord and the rent receipts have neither been proved by the landlord nor the rent receipts were proved by his authorised agent. PW 2 has not deposed that he was present at the time of writing of these rent receipts nor did he depose that he knows the signatures of Salam and Avinish. Moreso, the solitary evidence of PW 2 without any corroborative evidence cannot be relied upon. Thus, the factum of alleged lease has not been proved in any way. Further, the appearance of these rent receipts seem to be fraudulent and spurious. Hence, the plaintiff's alleged vendor, defendant No. 31, Khaled Solaiman, has or had no right, title and interest in the suit land. So, title and interest in respect of the suit land does not pass to the plaintiffs by virtue of transfer deed dated 27-5-1977.

 

Rezaul Karim vs Montana Md Hanm-nr-Rashid 12 BLC 705.

 

Section 108(C)

 

The court below misread and non-considered the plaintiffs' witnesses, specially PW 2 and 3. It further appears that Clause-O of section 108 of the Transfer of Property Act was not complied with and the tenant defendant acted contrary to it and changed the leasehold property from showroom to a factory. The property cannot be used for a different purpose from the one contemplated under the lease agreement.

 

Afzalul Haque (Md) vs Md Abdur Razzacjue 13 BLC 185.

 

Section 108(B)(j)

 

From the conditions of the lease and pursuant to section 108 (B)(j) of the Act, it is obvious that the lessor is entitled to get back the property after expiry of 50 years tenure of the lease period. In the event of the property be transferred or mortgaged or retransferred during the tenure of the lease deed, the transferee or the mortgagee or anybody can only get interest given for or during the valid period of lease and such interests is subject to any liability attached to the lease deed.

 

MM Badshah Shirazi vs Judge, Artha Rin Adalat 17 BLC 226.

 

Section 118

 

The defendant claimed the suit property solely on the basis of Salishnama but in pursuance of the so-called Salishnama, as a matter of fact, no deed of exchange was executed. The plaintiff in his evidence emphatically denied that plaintiff Nos. 1 and 2 did not put their signatures in the so-called salishnama. It is a fictitious paper created by the defendants only to grab the property. The learned Courts below without applying their judicial mind and without considering the legal bearing of the so-called Salishnama came to a wrong and erroneous finding in dismissing the suit of the plaintiff which is liable to be interfered by this Court.

 

Abdul Jalil Miah vs Siddiqur Rahman 14 BLC 651.

 

Sections 122 and 123

 

It is seen from the evidence on record that the PWs except making general statement that Mohendra Kumar Nath did not execute the deed of gift and that the evidence of PWs being negative in nature relating to the execution and registration of the deed of gift by Mohendra Kumar Nath, the High Court Division was not in error in setting-aside the judgment of the lower appellate Court affirming the judgment of the trial Court.

 

Shushil Chandra Nath vs Shanjib Kanti Nath 12 BLC (AD) 131.

 

Section 123

 

It appears that the plaintiff is claiming the property on the basis of gift made by his father. The plaintiff claims that he resides separately from his father maintaining his family independently. Admittedly, the deed itself is unregistered and according to section 123 of Transfer of Property Act, a gift may be effected by registered document and in the absence of registration the gift is not valid.

 

Birendra Kishore Ghose & Gopal Krishna Ghosh vs Bangladesh 12 BLC 718.

 

Section 123

 

The High Court Division has rightly found that the suit is maintainable in its present form also found that the suit property was a part of joint property of the Hindu joint family which has correctly came to the hand of Govinda Banik through amicable settlement and that ejmali property situated in any part of the world may be brought in the hotch-pots of the suit according to Section 2 of the Partition Act, 1898.

 

Provas Chandra Banik vs Naresh Chandra Banik 16 BLC (AD) 62.

 

Section 123

 

In this particular case, unregistered gift was made in favour of the plaintiff during the period of 1375 BS corresponding to February, 68 and it is void according to Article 5A of the Bangladesh Land Holding (Limitation) Order, 1972. It is admitted that the father of the plaintiff was holding land in excess of 100 bighas and to avoid such seizure of the property or to retain the excess land made such gift which is Exhibit 1 and that is not a valid gift in the eye of law. Therefore, the gift is made in favour of the plaintiff just to avoid section 5A of the Order 1972. The deposition made by the witnesses did not specifically state that the plaintiff is living separately. The PW 5, the mother-in-law of the plaintiff demanded separate property as he is a handicapped person but the plaintiff is not found in possession the gifted property while the marriage took place in the house of Dinesh Chandra. The statement made by PW 3 Md Mozammel Hoque, that Exhibit 1, the deed, was written by Naresh Chandra Sarker. Naresh was present at the marriage and it took place in the house of Dinesh. The possession was not effected on that date as the plaintiff has not accepted the gifted property and not found in possession.

 

Marriage was held in the house of Dinesh, the possession was not handed over on the same date, the gift therefore is not acted upon. The report which is Exhibit A was proved by PW 4 Shahjahan Ali reflects that the plaintiff is not living separately rather living with his father.

 

Further, it appears that the property has been seized and possession was taken up and it has been included in Khatian No. 1. PW 4 in his cross-examination, stated that from the office record it is seen that possession of the suit land was taken over by the Government. The CO (Rev) forfeited the suit land vide order No. 6 dated 28-3-79. The decision cited by the learned Advocate for the appellant that the deed even if not registered that can be cured on registration by the represen­tative. But law says that it must be registered as per section 123 of the Transfer of Property Act signed by the donor and attested by witnesses. Therefore, the deed of gift does not stand at all and even if that gift as accepted that has been done after promulgation of Article 5A of the Bangladesh Land Holding (Limitation) Order, 1972. Under such circumstances there is no merit in the appeal.

 

Birendra Kishore Ghose & Gopal Krishna Ghosh vs Bangladesh 12 BLC 718.

760

Truth and Accountability Commission Ordinance, 2008

Citation: 17 BLC 866, 16 BLC 100, 14 BLC (AD) 138

Case Year: 2008

Subject: Truth and Accountability Commission

Delivery Date: 2018-07-07

Truth and Accountability Commission Ordinance, 2008

[XXVII of 2008]

 

Section 26(3)

 

Those who get exonerated by the TAG, cannot be indicted for the offence that arose out of the same action. In so far as section 26(3) of the Ordinance and its consequences remained valid until the Ordinance concerned was wiped off, the legal position is that the beneficiaries of the said section immediately earned a vested right that emanated from the section.

 

Emon Shahriar vs People's Republic of Bangladesh 17 BLC 866.

 

Sections 19,22,25,26 & 29

 

The Non-party Care-Taker Government shall carry on routine function with aid and assistance of persons in the service of the Republic and it shall not make any policy decision. Further­more continuation of interim Care-Taker Government for years together or unlimited period is not warranted by the framers of the Constitution. The Voluntary Disclosure of Information (Ordinance No. 27 of 2008) clearly a policy decision, such policy decision cannot be enacted by Care-Taker Govern­ment and, as such, the enactment is violative to Article 58 D(l) of the Constitution. The Commission occupied the feild of the Supreme Court. The supervisory power of the Supreme Court has been encroached and dis-regarded and the Administration of Criminal Justice are not functioning in accordance with law and procedure due to interference of the Truth Commission. Under the Ordinance there is a scope of pick and choose of the offenders which has violated the equality clause under Article 27 of the Constitution. The impugned Ordi­nance directly violated Article 94-111-A under Part VI and Article 27, 31, 35(3)(4), Articles 58 B-E and all other Articles relating thereto. Thus basic concept of the Constitu­tion has destroyed.

 

The impugned Voluntary Disclosure of Information Ordinance, 2008 (Ordinance No.27 of 2008) published in the Bangladesh gazette extra-ordinary dated June 8, 2008 is liable to be declared to have been made without lawful authority and is of a legal effect and ultra-virus of the Constitution and all acts done or deeds or exoneration made or proceeding taken under the said Ordinance is also liable to be declared to have been done and made without lawful authority and is of no legal effect.

 

Adilur Rahman Khan vs Bangladesh 16 BLC 100.

 

Union Parishad Rules, 1984 Rules 5, 6, 8, 11 & 12(1) (2)

 

Since a resolution of no confidence against the petitioner was taken upon due compliance of law and the resolution has been approved by the competent authority, the order of removal in respect of the petitioner removing him from the office of Chairman does not suffer from any infirmity.

 

Amir Hossain Reza vs Bangladesh 14 BLC (AD) 138.

761

Union Parishads (Election) Rules, 1983

Citation: 14 BLC (AD) 84, 11 BLC 424

Case Year: 1983

Subject: Union Parishads (Election)

Delivery Date: 2018-07-07

Union Parishads (Election) Rules, 1983

 

 

Rules 36 to 38

 

The recounting of ballot papers must not be ordered lightly or as a matter of course and also on the sweet wishes of the unsuccessful candidates. The prayer for re-counting if not made by the defeated candidate or his agents or any person on his behalf before the Presiding Officer on conclusion of counting at the polling station as embodied in Article 36(5)(b) or before the Returning Officer is contained in Article 37(5), the foundation for recounting of ballot papers cannot be said to have been laid.

 

Khalilur Rahman vs Md Alam Bepari 14 BLC (AD) 84.

 

Rules 47, 48 and 49

 

The person of the Assistant Judge constituting an Election Tribunal under the Local Government (Union Parishads) Ordinance, 1983 does not entertain, try and dispose of an Election Petition in the capacity of an Assistant Judge or a Court of Assistant Judge, but simply and exclusively in the capacity of an Election Tribunal having jurisdiction from the Local Government (Union Parishads) Ordinance, 1983 and proceeding under the Union Parishads (Election) Rules, 1983.

 

Abdul Khalecjue vs Md Abdul Maleque 11 BLC 424.

762

Union Parishads Ordinance, 1983

Citation: 14 BLC 397

Case Year: 1983

Subject: Union Parishads

Delivery Date: 2018-07-07

Union Parishads Ordinance, 1983

[LI of 1983]

 

Section 65

 

In these cases though the Chairman was alleged to have committed offences which were serious in nature, but his performance of the functions of the union parishad would not be prejudiced as in these cases there was no nexus between the Chairman's alleged criminal act and his in performing functions as Chairman of the Union Parishad. Therefore, the said cases do not come within the mischief of section 65(1) of the Local Government (Union Parishad) Ordinance, 1983. The orders of suspension of the petitioners were absolutely illegal being passed without lawful authority and a result of unbridled and arbitrary exercise of power by the government and therefore both the Rules merit substance.

 

Sultan Mahmud Chowdhury vs Bangladesh 14 BLC 397.

763

Upazilla Parishad Act, 1998

Citation: 17 BLC 506

Case Year: 1998

Subject: Upazilla Parishad

Delivery Date: 2018-07-07

Upazilla Parishad Act, 1998

[XXIV of 1998]

 

Section 8(2)

 

The question whether the respondent No. 2 was a loan defaulter or not will be determi ned in the pending election appeal and not by summary proceeding in writ jurisdiction.

 

Dauad (Md) vs Bangladesh 17 BLC 506.

764

Value Added Tax Act, 1991

Citation: 17 BLC 527, 11 BLC 180, 11 BLC (AD) 233, 17 BLC 527, 16 BLC 351, 15 BLC 277, 15 BLC 417, 17 BLC 450, 11 BLC 292, 11 BLC 191

Case Year: 1991

Subject: Value Added Tax

Delivery Date: 2018-07-07

 

Value Added Tax Act, 1991

 

 

[XXII of 1991]

 

Section 2, 3(3)H), and 6(2)(Kha)

 

A supplier at the point of production, shall be liable to additional tax extraction if by the time the process of supply culminates in the delivery of the goods it is found that a separate or additional value has latched on to the total value of the supplied goods during transit.

 

Aramit Limited vs National Board of Revenue Dhaka 17 BLC 527.

 

Section 3(2)

 

The "deemed export" is not an actual export. There is no LC nor the goods go out of the country. Therefore, in case of "deemed export" there cannot be export proceeds realisation certificate and they would be replaced by encashment certificate and that has been furnished in the instant case both to the respondents before filing of the writ petition and also before this Court as annexure. It therefore, appears to us that the transactions in question qualify as "deemed export" and they have fulfilled the requirements of repatriation of the sale proceeds through Bangladesh Bank. There­fore, in the facts and circumstances of the case and the materials on record it does not lie in the mouth of the respondent No. 2 to take the plea that the petitioners are not entitled to get benefit of rebate as well as exemption of VAT for the transactions in question as they do not qualify as "deemed export" rather, all the transactions in question come within the ambit of section 3(2) of the Act and rule 31 of the Rules and are "deemed export".

 

Rahim Steel Mills Co (Pvt) Ltd vs National Board of Revenue 11 BLC 180.

 

Section 3(5)(kha)

 

One's service of an organisation comes in one of the categories of services mentioned in the Schedule of the VAT Act the services rendered by such organisation whose services fall in one of the categories of the services mentioned in is chargeable with VAT and as services of the PSI Agency fall in one of the categories of services mentioned in the Schedule of the VAT Act, as such, PSI Agency is to pay VAT @15% as in section 3 of the VAT Act, in respect of the charge, fees or commission received by PSI Agency for the services rendered by it. It is pertinent to mention since on the date of signing of the contract between the PSI Agency and the Government was the law of the land, (on 1-10-1999 was also the law of the land) as such the services of the PSI Agencies are va table. In the background of the discus­sions since service of the PSI Agency falls in one of the categories of services mentioned in the  and the provision as in section 3 of the VAT Act implies the services of the vatable at the time of the signing of the contract, the services of the PSI Agency is vatable.

 

NBR, Chairman vs Intertek Testing Services International Ltd 11 BLC (AD) 233.

 

Section 15

 

These "centres" being used at places of delivery to distributors at no value additional to that upon which VAT has been levied and paid in advance of receipt on consideration of such delivery, there is no authority under the Act for the Respondents to insist upon a mechanism of compliance as poses the petitioner to additional liability for VAT on the goods so supplied and delivered.

 

Aramit Limited vs National Board of Revenue Dhaka 17 BLC 527.

 

Sections 5(2) and 9

 

It appears that nowhere in the affidavit-uvopposition the respondents denied that the petitioner did not take rebate of 15% but only stated that the petitioner did not take rebate within 30 (thirty) days as per provision of law which is a separate matter. In such a case the respon­dents can take another procedure but cannot refuse to give rebate of 1.5% which were taken by the petitioners since they paid the same at the import stage.

 

Kamal Imports and Exports Ltd vs National Board of Revenue 16 BLC 351.

 

Section 13

 

If it is proved that on the bills of entry that the petitioner paid duty, VAT and other allowable charges for import of raw materials for manufacture of PP woven bags, that the raw materials were used for manufacture of said bags, that supply of said bags against export letter of credit and bills of export to ship (s) at the outer anchorage or even within the territorial water of Bangladesh for packaging of imported fertilizer for clearance into Bangla­desh and the foreign currency received against such supply were repatriated through the Bangladesh Bank and that the prayers for drawback were made within six months of such supply then there could not be any escape from the conclusion that such supply of PP woven bags must be deemed to be export under rule 31(Ka) and 32 of the VAT Rules and thereby, would entitle the petitioner to drawback under section 13 of the VAT Act.

 

United Fibre Industries Ltd vs National Board of Revenue 15 BLC 277.

 

Section 15

 

The requirements for registration under section 15 are intended to be in and of one thing only, that is, the identification of time and place where a liability to pay VAT arises and when it should be paid within the scheme of the Act.

 

Aramit Limited vs National Board of Revenue Dhaka 17 BLC 527.

 

Sections 42(1), 42(lka) and 196A(3)

 

On a close reading the provisions as envisage under sections 42(1), 42((lka), 42(4) and section 196A(3) together we found that legislature consciously separated the stage of filing of the appeal and the phase of hearing of the same after acceptance that is to say that before acceptance of the appeal for hearing there is a filing. A statue has to be interpreted in its literal meaning after going though the entire provision itself and not in an isolated manner when it is viewed in the context of a particular situation (as in the case before us). We must not forget that the intent of the legislature has to be gathered from the whole of the statute. In the present case we have found that the appeal was filed on 14-10-2004 and subsequently on 24-10-2004, by order No.l, the Chairman of the Tribunal sent the same to Tribunal No.2 who by order No.2 dated 2-11-2004 i.e. only a few days after filing of the appeal accepted the same for hearing and decision was given by the Tribunal on 24-10-2005 which was done absolutely well within the time as contem­plated under section 42(4) of the VAT Act.

 

Golden Match Works Ltd vs Customs, Excise and VAT 15 BLC 417.

 

Section 55(1)

 

The claimed amounts have not been demanded within the period of three years as legally mandated. Since the demand so made is barred by law, the additional tax in the form of penalty shall consequentially be bad in law and not demandable.

 

Provati Insurance Company Ltd vs Commissioner of Customs, Excise and VAT 17 BLC 450.

 

Sections 55(1)  and 37(2)(3)

 

In the absence of compliance with the requirements of section 55(1) of the Act and, thereafter, of demands made twice as required under section 37(2) (KaKa), the penalties under sections 37 (2) and 37 (3) have been illegally imposed.

 

Provati Insurance Company Ltd vs Commissioner of Customs, Excise and VAT 17 BLC 450

 

Sections 55 and 56

 

The demands in question appear to have been issued pursuant to the provision of section 56 of the Act but the respondent cannot resort to section 56 of the Act without complying with the provisions of section 55. Therefore, it appears that in issuing the impugned demands the respondents have acted illegally and beyond their jurisdiction and the demands therefore, do not withstand the scrutiny of law. Thus the demands are liable to be struck down as being illegal and without jurisdiction.

 

Diamond Steel Products Co (Pvt) Ltd vs Commissioner of Customs 11 BLC 292.

 

Section 56

 

In view of the admitted position it appears that the demands made by the respondents through Annexures A, Al and A2 appear to be unlawful and without jurisdiction. The respondents are at liberty to determine the actual amount of evasion of VAT, if any, by constituting an enquiry com­mittee in the light of the recommendation of the second enquiry committee report dated 14-7-1996.

 

Rahim Steel Mills Co (Pvt) Ltd & another vs Government of Bangladesh 11 BLC 191.

 

765

Value Added Tax Rules, 1991

Citation: 11 BLC 180, 15 BLC 277

Case Year: 1991

Subject: Value Added Tax

Delivery Date: 2018-07-07

Value Added Tax Rules, 1991

 

Rule 31

 

The "deemed export" is not an actual export. There is no LC nor the goods go out of the country. Therefore, in case of "deemed export" there cannot be export proceeds realisation certificate and they would be replaced by encashment certificate and that has been furnished in the instant case both to the respondents before filing of the writ petition and also before this Court as annexure. It therefore, appears to us that the transactions in question qualify as "deemed export" and they have fulfilled the require­ments of repatriation of the sale proceeds through Bangladesh Bank. Therefore, in the facts and circumstances of the case and the materials on record it does not lie in the mouth of the respondent No. 2 to take the plea that the petitioners are not entitled to get benefit of rebate as well as exemption of VAT for the transactions in question as they do not qualify as "deemed export" rather, all the transactions in question come within the ambit of section 3(2) of the Act and rule 31 of the Rules and are "deemed export".

 

Rahim Steel Mills Co (Pvt) Ltd vs National Board of Revenue 11 BLC 180.

 

Rule 31(ka)

 

If it is proved that on the bills of entry that the petitioner paid duty, VAT and other allowable charges for import of raw materials for manufacture of PP woven bags, that the raw materials were used for manufacture of said bags, that supply of said bags against export letter of credit and bills of export to ship (s) at the outer anchorage or even within the territorial water of Bangladesh for packaging of import­ed fertilizer for clearance into Bangladesh and the foreign currency received against such supply were repatriated through the Bangladesh Bank and that the prayers for drawback were made within six months of such supply then there could not be any escape from the conclusion that such supply of PP woven bags must be deemed to be export under rule 31 (Ka) and 32 of the VAT Rules and thereby, would entitle the petitioner to drawback under section 13 of the VAT Act.

 

United Fibre Industries Ltd vs National Board of Revenue 15 BLC 277.

766

Voluntary Social Welfare Agencies (Registration and Control) Ordinance, 1961

Citation: 4, MLR (1999) (AD) 350

Case Year: 1961

Subject: Voluntary Social Welfare Agencies (Registration and Control)

Delivery Date: 2018-04-25

Voluntary Social Welfare

Agencies (Registration and Control) Ordinance, 1961

(Ord. XLVI of 1961)

 

Section 9(1) Dissolution of Executive Committee— Locus stand! of founder Member in a suit—

 

Bangladesh Association for Voluntary Sterilization (BAVS) has its constitution and Bye laws under which its National Executive Committee is empowered to protect the interests of the organisation in suits. A founder member of the Association when not authorised by the National Executive Committee to do so has no locus standi to bring suit against the dissolution of the Executive Committee.

 

Deluar Hossain (Md). Vs. Joint Secretary Ministry of Health and Family Welfare and others. 4, MLR (1999) (AD) 350.

767

Waqf Ordinance, 1962

Citation: 11 BLC 465, 11 BLC 202, 17 BLC 710, 14 BLC (AD) 94, 16 BLC 267, 17 BLC 198, 14 BLC (AD) 115, 16 BLC 517, 17 BLC 689, 17 BLC 69, 17 BLC 459, 17 BLC 459, 17 BLC (AD) 42, 17 BLC 722, 15 BLC (AD) 44, 13 BLC 384, 17 BLC (AD) 187, 17 BLC (AD) 23, 11 BLC 294, 1

Subject: Waqf

Delivery Date: 2018-07-07

Waqf Ordinance, 1962

[I of 1962]

 

Sections 32 and 43

 

Section 43 of the Waqf Ordinance, 1962 provides for appeal before the District Judge. Since revision lies against the order of the District Judge under the Provision of section 115(1) of the Code of Civil Procedure, 1908, the petitioner correctly preferred the appeal before the District Judge, Dhaka, against the impugned order dated 6-9-2007 and then preferred a revisional application before the High Court Division against the dismissal of his appeal by the District Judge, Dhaka. But although the petitioner was liable to prefer civil petition for leave to appeal to the Appellate Division of the Bangladesh Supreme Court, instead he preferred the instant writ petition which is apparently erroneous. Therefore, this Court finds that this writ petition is not maintainable and accordingly, this Rule is liable to be discharged.

 

Habibur Rahman vs Bangladesh 11 BLC 465.

 

Section 32(1)(2)

 

Sub-section (2) of section 32 is a positive bar against filing any appeal against an order passed under sub­section (1) of section 32 of the Ordinance by the Waqf Administrator removing any Muta-walli or Committee without handing over charge of the Waqf Estate. This being so it is presumed that the opposite-party No. 1 preferred the appeal after handing over charge of the Waqf Estate in compliance of the law which is a condition precedent to filing an appeal. Therefore, there remains nothing to stay operation of the order of removal passed by the Waqf Administrator appointing a new Committee.

 

Yeasin All Master vs Md HeMuddin Pramanik 11 BLC 202.

 

Section 32(1)—Removal Mutawalli

 

The order of removal of the petitioner as Mutawalli of the Wakfs Estate was passed in violation of the provision of the proviso to the section 32(1) and provision of section 38 of the Ordinance and, as such, the same cannot be sustainable in law.

 

Abdul Kalam vs Administrator ofWaqfs 17 BLC 710.

 

Sections 32 and 43

 

If a Mutwalli is removed and he is aggrieved he can prefer appeal under sub-section (3) of section 32 of the Ordinance. The petitioner not having taken any recourse of such provision instead invoked writ jurisdiction under Article 102 of the Constitution which is not in accordance with law and, as such, the petition was not maintainable.

 

Safiuddin Ahmed vs Adminis­trator of Waqf 14 BLC (AD) 94.

 

Section 56

 

Section 56 of Waqf Ordi­nance, 1962, debars a Mutualli from making permanent transfer of the waqf estate to the total extinction of its basic purpose.

 

Zareen Biscuit Company vs Sayed Salimullah 16 BLC 267.

 

Words and Phrases Adverse    Possession

 

Question   of adverse possession is a mixed question, at first fact, then law. The claimant must prove such possession is over and without concealment and be adequate in continuity, in publicity and in extent and implies it commences in wrong and is maintained against right. Such possession of the claimant must be uninterrupted at least for 12 years. If it is proved claimant loses possession even for a day before completion of 12 years, then he had no right to claim title by adverse possession.

 

Abu Md Shah Newaz vs Bangladesh 17 BLC 198.

 

Admiralty Suit

 

Unless a suit is filed within one year after the delivery of the goods or the date when the goods should have been delivered, the carrier and the ship shall stand discharged from all liability in respect of loss or damage. Accordingly, the High Court Division held that the order of arrest dated 10-7-2007 in respect of vessel 'MV Lady Fatima' and 'MV Dali' was not sustainable in law.

 

HRC Shipping Ltd vs MV Lady Fatima 14 BLC (AD) 115.

 

Benami transaction—Proof of—

 

Claim of benami transaction, for success, depends on the proof of a number of facts, namely, motive of purchase, source of money of the beneficial owner, custody of title document and conduct of the parties in relation to the land.

 

Anwar Karim Tarafdar vs Md Asad-ud-Doula Tarafdar 16 BLC 517.

 

Cease and Resignation

 

Etymologi-cally both the words 'cease' and 'resignation' imply a sense of relinquishment of some exclusive right or acquisition of kind. To our mind even a man of ordinary prudence if properly explained would accept the said interpretation far less a prudent one. 'Cease' as we could understand indeed bears an

expression and meaning of relinquishing or giving up something.

 

Nayeemul Islam Khan vs DC, Dhaka 17 BLC 689

 

Contempt of Court

 

Though it took sometime in complying with the substantive order of the High Court Division, the contemner ultimately has complied with the order. There is no deliberate and willful disobedience of the order of the High Court Division.

 

Md Mazedul Islam vs DG, Secondary and Higher Education 17 BLC 69.

 

Co-ordinate Jurisdiction

 

Term does not mean superiority of one Court over another in terms of appellate power or higher pecuniary jurisdiction in original cases nor does it connote the rank held by the presiding Judge of any of the two Courts, rather it means the nature of the jurisdiction exercised by the two Courts in relation to a suit or proceeding.

 

Rasib AH vs Moniruzzaman Choivdhury 17 BLC 459.

 

Co-ordinate Jurisdiction

 

The provi­sions of the Civil Courts Act empowering a Joint District Judge to hear appeal from certain decision of a Senior Assistant Judge/Assistant Judge, do not render their status as Courts of co-ordinate jurisdiction" in relation to the dispute in question.

 

Rasib Ali vs Moniruzzaman Chowdhury 17 BLC 459.

 

Divine Law

 

The Quran is the Divine Law and the Prophet Muhammad (SM) displayed himself during his life time, the religious rites to be followed by a Muslim, which is being followed by the Muslims all over the world for the last over fourteen hundred years.

 

Deb Narayan Moheswar vs Bangladesh 17 BLC 859.

 

Election Tribunal

 

The acceptance of the nomination paper of the writ petitioner should be deemed a provisional acceptance. Therefore, anybody aggrieved by the acceptance of the nomination paper of the writ petitioner may go to the Election Tribunal.

 

Iqbal Hossain (Md) vs Bangladesh 17 BLC (AD) 42.

 

Equitable Relief

 

The cause of justice, equity and fair play one post of Executive Engineer (Grade-6) under the Department of Fisheries, Ministry of Fisheries and Livestock be kept reserve till disposal of Administrative Appellant Tribunal Appeal Case.

 

Alimuz-zaman Chowdhury (Md) vs Bangladesh 17 BLC 722.

 

Fugitive from justice

 

Admittedly, the writ petitioner was convicted in absentia Naturally, the learned Special Judge issued warrant for the execution of the sentence under section 389 of the Code at the time of delivery of judgment, and the writ petitioner moved the petition on 17th September, 2008 when there was warrant for the execution of the sentence. It is not understood in suchbackdrop of the case, how the learned Judges of the Division Bench could even entertain the writ petition on behalf of a fugitive from justice, ignoring the long settled principles being followed by the Courts? If this process is allowed, the fugitives from justice either convicted or not will be emboldened and despite processes have been issued, they will defy the processes of the Courts and in such cases, the administration of criminal justice will be crumpled.

 

Anti-Corruption Commission vs Dr HBM Iqbal Alamgir 15 BLC (AD) 44.

 

Guidelines to the Government for rehabilitation of the 'slum dwellers—-

 

The Government should undertake a master plan or rehabilitation schemes or pilot projects for rehabilitation of the slum dwellers and undertake eviction of the slum dwellers according to the capacity of their available abode and with option to the dwellers either to go to their village home or to stay back leading an urban life, otherwise the whole­sale demolition of slums may not solve the problem because the evicted persons from one slum may flock together to another place forming a slum or slums and thereby mounting problems for the government and the country.

 

Bangladesh Legal Aid and Services Trust vs Bangladesh 13 BLC 384.

 

Legitimate Expectation

 

Legitimate expectation does not by itself fructify into a right and therefore, does not amount to a right in the conventional sense.

 

Public Service Commission vs Sohel Rana (Md) 17 BLC (AD) 187.

 

Legitimate Expectation—

 

Legitimate expectation would arise when a body of representation or by past practice around expectation which it would be within its powers to fulfill.

 

Public Service Commission vs Sohel Rana (Md) 17 BLC (AD) 187

 

Legitimate Expectation

 

Govern­ment merely requested the PSC to reconsider the earlier recommendation and the PSC in the context of the matter on taking into consideration of various reports decided to hold the examination within a very short time. So the decision was not imposed by the Government, rather the Commission independently took the decision.

 

Public Service Commission vs Sohel Rana 17 BLC (AD) 187

 

Mohammedan Marriage Law

 

There is no dispute that the Mohammedan marriage among Muslims is not sacrament but purely civil contract. Marriage brings about a relation based on and arising from, a permanent contract for intercourse and procreation of children between man and woman.

 

Momtaz Begum vs Anower Hossain 17 BLC (AD) 23.

 

Marriage—Mohammedan  Law—

 

A marriage contract, it is stated, as a civil institution, rests on the same footing as other contracts. The parties retain their personal rights against each other as well as against strangers; and, according to the majority of the schools, have power to dissolve the marriage-tie, should circumstances render this desirable.

 

Momtaz Begum vs Anower HossainU BLC (AD) 23

 

Marriage—Mohammedan Law—

 

Marriage under the Mohammedan Law is a civil contract requiring no ceremony or special formality.

 

Momtaz Begum vs Anower HossainU BLC (AD) 23.

 

Maintainability of a Suit

 

This is a settled principle laid down by our Apex Court as well as the superior Courts of this sub-continent that the question of maintain­ability cannot be decided except looking into incidentally in an interlocutory matter which should be decided on merit after taking evidence on trial.

 

Abu Aslam (Md) Advocate, Rajshahi District Bar Association vs Rajshahi University 11 BLC 294.

 

Muslim Personal LawWaqf

 

meaning of Waqf, in Muslim personal law, is the dedication of the property for religious, pious or charitable purposes which by necessary implication is the extinction of appropriator's ownership in things dedicated and detention in the ownership of God for the ultimate benefit of mankind.

 

Zareen Biscuit Company vs Sayed M. Salimullah 16 BLC 267.

 

Mutuwali

 

Legal status of—Mutuwalli is merely a superintendent/manager of waqf property—Under Muslim Law waqf property does not vest in him.

 

Zareen Biscuit Company vs Sayed M. Salimullah 16 BLC 267

 

Observations

 

Appellant wanted to have a favourable order by-passing the legal procedure as stipulated in the Act as well as the law of the land.

 

Ok-Kyung Oh vs Tae-Hung Packaging (BD) Ltd 17 BLC (AD) 1.

 

Observation

 

Our problems remain and will remain. Budget will be passed, big talking in bubble month continuing but of no result. Mayor being the 'City father' has a duty cast upon him to see whether problems can be minimize by synchronizing the efforts of all departments so that citizen may not suffer next year.

 

Dhaka City Corporation vs MR Trading Co. 27 BLC 159.

 

Partition Suit

 

It is contended on behalf of the petitioners that the plaintiff after going back to possession of the suit land should not disturb the possession of the defendants who are admittedly co-sharers in the suit land till co-sharers separated their saham either by amicable partition or by metes and bounds through a partition suit. Finding the contention reasonable the High Court Division directed the plaintiffs not to disturb the possession of the defendants after they were restored to possession in execution of the decree passed in the present suit under section 9 of the Specific Relief Act till suit holding is partitioned by metes and bounds.

 

Sabar Mia (Md) vs Abdul Mannan Barker 11 BLC 609.

 

Partition Suit

 

In Partition Suit, plain­tiffs and defendants stand on equal footing and no weakness of plaintiffs or defendants, ipso facto, give saham to any one. The defendant No.l is to prove acquisition of property through Exhibits G and H to have partition of the suit land to the extent of 14 annas share in the suit property. In that view of the matter, the learned Additional District Judge committed no illegality in decreeing Partition Suit to the extent of 14 annas share. Since plaintiff of Other Suit No. 7 of 1972 acquired no title by purchase as her vendor acquired no title by wasiatnama and patta, the suit i.e. Other Suit No. 7 of 1972, filed by Ambia Khatoon for ejectment of Abdus Salam, who is a plaintiff in Partition Suit No. 63 of 1970, has been rightly dismissed. In that view of the matter, there is no substance in this Rule.

 

Ambia Khatun vs Abdus Salam 11 BLC 617.

 

Partition Suit

 

Without getting rid of the stumbling blocks in the form of deed of will and the deed of adoption, no relation of the plaintiffs with Joy Chandra could be established to claim his properties as reversionary heirs. In such facts also, the suit for simple partition is not maintainable.

 

Joyanta Kurriar Datta vs Dilip Ranjan Datta 13 BLC 376.

 

Partition Suit

 

The learned trial Court, on the basis of presumption and surmise without determining and calculating the quantum, gave the Sahan to the plaintiff in first schedule to the extent of 44 decimal of land which is not legally tenable in respect of V3 share of plaintiffs' predecessor. On the other hand, the lower appellate Court, considering and determining all the legal and factual aspects of the case, passed the judgment in reversing the judgment and decree passed by the trial Court which does not call for any interference by the Court.

 

Sayed vs Fazar Rahman 13 BLC 823.

 

Partition Suit

 

It is a fit case for remand for ascertaining the 'kha' schedule land as per boundary and to allot 'saham' to the plaintiff and his other co-sharers from the said ascertained 0.65 acre land by appointing an experience and good survey knowing Advocate Commissioner.

 

Khorshed Alam vs Hazi Mohiuddin 13 BLC (AD) 72.

 

Partition Suit

 

It is in conformity with the well settled principle of law that posses­sion of one co-sharer is in point of law the possession of all co-sharers. An amicable arrangement for separate possession of joint lands amongst the co-sharers by itself does not amount to partition by metes and bounds so as to convert the joint title and possession of the co-sharers into exclusive title and possession. In other words, possession of any co-sharer in any joint land will not confer any title by adverse possession. When the property belongs to several co-sharers, pos­session of one co-sharer in such property cannot confer exclusive title, inasmuch as such possession by one co-sharer cannot be taken to be adverse ppssession.

 

Probir Kumar Rakshitvs Abdus Sabur.U BLC (AD) 28.

 

Partition Suit

 

Admittedly, there is no partition. Considering the documents, it appears that the defendants are the co-sharers of the suit land and they are in exclusive possession in the specific land, so they are entitled to retain the same until partition.

 

Haradhan Sen vs Sunil Chandra SarkerU BLC 372

 

Partition Suit

 

Mere payment of rent in the name of one of the co-sharers cannot oust another co-sharer from the claim of title to a property who is in joint possession thereof.

 

Meheron Nessavs AH Ahmed Khan 14 BLC 743

 

Partition Suit

 

It is contended on behalf of the appellant that as there was already a Partition Suit being No. 370 of 1968 and saham was given in the said suit so, the instant suit was not maintainable. As Partition Suit No. 370 of 1968 was filed by one Fazlur Rahman Khan for partition wherein the present plaintiff and defendant No. 1 were impleaded as defendant Nos. 1 and 2 respectively and saham was given only to the plaintiff of that suit to the extent of 0.01 acre of land and no saham was given to defendant Nos. 1 and 2 that is, the present plaintiff and defendant No. 1, the decree passed in that suit cannot debar the plaintiff's claim of partition.

 

Meheron Nessa vs AH Ahmed Khan 14 BLC 743.

 

Partition Suit

 

The two deeds of gift were challenged in the lower Court on behalf of the defendant No. 3 as invalid since lands covered by them being undivided share of the property and they are hit by the doctrine of Musha. The lower Court has misread the doctrine of Musha and has erroneously decided that the plaintiff and his brothers have acquired no title by those two deeds. There are clear recitals in both the deeds of gift that the possession of the land under each of them was delivered to the donees. There is also clear evidence to show that possession under those deeds of gift was obtained by the donees, who since then have been in exclusive possession and in undisturbed possession. The doctrine of Musha does not bar to enjoy such property in joint possession.

 

Badarnessa vsMafuza Khatun 15 BLC (AD) 195.

 

Partition Suit

 

The plaintiffs claim partition of 2.16V2acres of land by metes and bounds. The heirs of Ayeb Ali defendant Nos. 1-9 themselves did not admit the deed allegedly executed in favour of their father. The trial Court without considering the above mentioned evidence and vital aspects of the case and without applying its judicial mind gave its finding about the transfer of 2.45 acres of land from CS Plot iNo.1356 to Yasin Ali which is not supported by the contents of the deed itself.

 

Hasen AH vs Rustom AH 15 BLC 54.

 

Partition Suit

 

The High Court Division while believing the deed of gift did not advert to the findings arrived at by the learned Sub-ordinate Judge. We are convinced that the story of auction purchase, giving licence of two plots to the plaintiffs and then the execution of the deed of Hiba-bil-ewaj haven been set up by the defendants during the period between 9th July, 1955 and 21st June, 1962 with a view to deprive the plaintiffs from their inherited and acquired property.

 

Zafela Begum vs Atikulla 16 BLC (AD) 46.

 

Partition Suit

 

Since the defendants were allotted saham maintaining 36 decimals of land, it would not be justified to interfere with the impugned judgment and decree. Since the defendant's have not been allotted share lesser than that of their actual saham.

 

Abdul Hye vs Serajul Hoque 16 BLC 569.

 

Partition Suit

 

On the basis of joint argument of the learned Counsels of both the sides the High Court Division was pleased to discharge the Rule with a direction to the trial Court to appoint a survey knowing Advocate Commissioner and partition the entire suit land of 5.62 acre i.e. 1.50 acres in favour of plaintiff, 0.711/ acre in favour of defendant-petitioner, 1.00 acre in favour of the heirs of defendant No. 20 and the rest among other defendants.

 

Arela Bewa vs Alekjan Beiva 16

 

Post Decision Hearing

 

Failure to issue notice may not be fatal where the person complaining was aware of the proceeding and took steps to file his objection as it has happened.

 

Amzad Hossain vs Bangla­desh Bank 17 BLC 188.

 

Points not raised before cannot be raised before Appellate Division

 

On query the learned Counsel failed to sub­stantiate that the moot point raised by him now before the Appellate Division was ever agitated before the trial Court or court of appeal below and even in the pleadings the defendant-petitioners refrained from raising the plea now raised before the Appellate Division. In such view points cannot be entertained at this last stage at the end of the day. Moreover, there is no material to substantiate the grievance.

 

Bibi vs Md Yusuf 12 BLC (AD)

 

Permissive Possession

 

The under­standings of a child are not discarded but their such understanding should be taken into consideration with much caution. PW 1 in 1958 was a boy of 5 years and the suit was filed in 1981 and by this time he was major enough to understand what is meant by per­missive possession.

 

Abu Md Shah Neivaz vs Bangladesh 17 BLC 198.

 

Public Interest Litigation

 

A person for personal gain or private profit or political motive or any oblique consideration cannot be said to be a person having sufficient interest in a proceeding of PIL. Similarly, a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievance deserves rejection at the threshold.

 

Md Shahjahan Shanta vs Bangladesh 17 BLC 844.

 

Presumption of Marriage

 

Moham­medan Law—Even in the absence of formal proof of a valid marriage, a marriage can be presumed by evidence of conduct and reputation, and the question of consum­mation forms often an important element in the status of valid marriage. A presumption of consummation is raised from the retire­ment of the husband and wife, i.e. there should be no third person at the place and that the place should not be a public one, like a public bath, public road, a mosque etc.

 

Momtaz Begum vs Anoiver Hossain 17 BLC (AD) 23.

 

Rent Receipts

 

The High Court Division found that though the back pages of the rent receipts contained the names of the rent receivers but there is also a recital in the back page to the effect that without the approval of the Chief Manager of the Dhaka Nawab Court of Wards Estate no settlement of any land under the management of the above Estate could be granted; Exhibits 2 and 4, the basic documents of title of the plaintiffs, contain over-writings in respect of Khatian No. 24, which can be seen with open eyes and so the same does not inspire any confidence.

 

Harun-al-Rashid Mollah vs Bangladesh represented by the Secretary, Ministry of Forest 12 BLC (AD) 79.

 

Rules of the Appellate Division

 

Since no concise statement was filed, under the Rules of the Appellate Division, the Advo-cate-on-Record for the respondent No. 1 or the learned Counsel, who as submitted by the learned Advocate-on-Record, would have made submission for the respondent had no right of making submission on behalf of the respondent No.l.

 

Ershad AH Howlader vs Santi Rani Dhupi 12 BLC (AD) 36.

 

Sura Al-Baqara, An Nisa

 

When the Holy Quran has at many places clarified the sacrifice of Ishmael (AS) being the eldest son of Ibrahim (AS) indicating to be the only son at the time of sacrifice, and after the sacrifice of Ishmael, (AS), Ibrahim (AS) was given the good news of the birth of Isaac (AS), the question of laying down Isaac (AS) to sacrifice for the satisfaction of the Almighty Allah as contended by the petitioner does not arise at all.

 

Deb Narayan Moheswar vs Bangladesh 17 BLC 859.

 

Welfare of Child

 

The order in relation to custody of a child should never be presumed to be inscribed in stone. Matter such as custody must always remain fluid since charge in circumstances at any time require the terms of the custody of the child to be varied upon a fresh application in order to comply with the age-old principle that the welfare of the child is a paramount consideration and in modern parlance "the best interest of the child" must be given due consideration.

 

Anika Ali vs Rezwanul Ahsan 17 BLC (AD) 77.

 

Writ Jurisdiction

 

Equitable relief—A writ remedy is an equitable one. A person approaching this court must come with a pair of clean hands. The interest of justice and public interest are very often one and the same. Therefore, the Courts have to weigh the public interest vis-a-vis the private interest. Unless any illegality is committed in the execution of the policy or the same is contrary to law or malafide, a decision bringing about change in the administration cannot be interfered by this Court sitting in writ jurisdiction.

 

Md Shahjahan Shanta vs Bangladesh 17 BLC 844.